단행본 서적의 제호의 상표 보호에 관한 연구 -‘어린왕자’를 둘러싼 논의와 관련하여-

The topic of this article is the trademark protection for single literary titles in Korea. The issue is whether a single literary title of a book, the copyright of which has already expired or is about to expire, can be protected as a trademark, or can be registered as a trademark. To find out the answer to the issue, this article examines court cases both in Korea and in the U.S., and some scholarly comments on the issue. After criticizing the opinion of the courts and scholars in both countries, this article concludes as follows: First, according to the Korea Supreme Court opinion, a registered mark, which acquired secondary meaning under article 6 paragraph 2 of Korea Trademark Act, preempts the application of article 51 paragraph 1 of the same act. This interpretation would result in the unreasonable limitation of the constitutionally guaranteed freedom of speech and expression. Second, the U.S. federal courts’ opinion that single literary titles are generic makes little sense when a title explains its book's content, directly or indirectly. Third, under the current Korea Trademark Act, the scope of a good does not have to be determined on the basis of the classifications of the Korea Patent Office. Fourth, the protection of a single literary title as a registered trademark is not desirable because of the risk of the abuse by a former copyright holder of the book, the copyright of which has already expired. Instead, unfair competition approach can provide a balance between the protection of a title as a source indicator and the use of the title by a third party without invoking likelihood of confusion.