색채 자체의 상표로서의 출원 및 등록적격성에 관한 비교법적 고찰

The use of color by business to identify their products is increasing. If a color functions to identify a product or service and distinguish it from other products or services, there seems no reason why it should not be afforded trademark protection. Recently a trademark which comprises a single color or a combination of colours has become the subject of registration in Korea by the revision of Korean Trademark Act in 2006. However, regarding the application requirements and the registrationist of color alone as a trademark remains considerable issues to debate. This article is to review on the application requirements and registrability of ‘color per se’ as a trademark by the comparative analysis for the American and EU trademark system. This article studies not only Lanham Act and TMEP but also EU Directive and Regulation on the requirements of registration(distinctive character, secondary meaning, non-functionality) of ‘color per se’ as a trademark. In order to refer them to Korean trademark system properly, United States Court cases including Qualitex v. Jacobson Prods and ECJ case of In Libertel Groep v. Benelux Merkenbureau and BOA cases are discussed or examined. Concerns also exist over the potential difficulties in the ability to obtain an accurate picture of the colors and the application requirements including the standards to be used to define or identify the color. For example, color identification by reference to the Pantone Matching System could provide an objective means to identify and facilitate searching. Finally, a proposal on the desirable directions for the future operation of the Korean trademark rules and regulations regarding the color alone as a trademark.