저작권과 상표권의 利用.抵觸關係에 관한 小考 - ‘産業活力再生特別措置法’을 중심으로

In principle, copyright and trademark protect different objects which are ‘works’, and ‘mark’ in different ways. However, as in the case of ‘characters’, two rights can take effect on the same object simultaneously, resulting in complicated legal relations. In particular, the problems are getting difficult to solve in the case that copyright and trademark belong to different persons. This thesis is about how to deal with the legal relations in such cases. The chapter 2 compares copyright with trademark in the following aspects: purpose of protection, objects of protection, birth and contents of right and its duration. The chapter 3 discusses which trademark can satisfy essential conditions for copyright and which parts of works can be allowed to be registered as trademark. The chapter 4 examines instances where copyright and trademark come into conflict, the principles to apply the priority in such cases and each case in which copyright and trademark precede each other. Finally this thesis discuss what the issues are in the ‘Little Prince’ case and how they can be resolved. The major issues are divided into two aspects. Firstly, it is whether or not the trademark of illustrations and the title is registered legally. Particularly the point at issue is whether or not the associated trademark comes under descriptive marks. In terms of Patent Office and Cases, the trademark registration of the illustrations and the title, which a copyright holder applied, seems legitimate. However, what if other person except SOGEX applies the trademark of ‘Little Prince’? Basically, as in the registration process, the present trademark law does not ask if a work is produced by the applicant or by the other person. That is, the applicant except the producer (writer) can obtain the trademark right because the title of the work does not get the copyright protection. The second issue in dispute is about how far the registered trademark linked to ‘Little Prince’ can have an influence. As mentioned in Chapter 4, publishers can publish ‘Little Prince’ because the trademark is not in effect, which is based on article 51. Besides, it is not considered illegitimate that publishing other works of Saint-Exupéry under the title of ‘Little Prince’, which is used as just the title. However, it infringes the trademark when an illustrated book is published in series under the trademark of ‘Little Prince’.