모방상표의 등록 차단에 관한 고찰 ―특허법원 2009허5813 및 2009허5806 (2009. 11. 25. 선고)를 중심으로 ―

Korean Trademark Law 7 (1) (xii) stipulates that “a trademark is easily recognized as indicating the goods of other person by consumers inside or outside Korea and which are used with bad faith” should not be registered. The Korean Trademark Tribunal had a tendency to be very conservative in admitting the well-known status, especially considering the evidences. The Patent court, however, tried to meet the contemporary paradigm by judging to admit the well-known status much wider with considering overall the evidences. Meanwhile, the registrant of the trademark in this case was the defendant of the prior cancellation. With the expectation of the cancelation filing from genuine rightful person, he filed an application for the mark which is very similar to the canceled trademark. The Korean Trademark Tribunal and the Patent Court did not give a judgment on this matter. However, in case that the applicant had bad faith and it is strongly believed as such, Korean Trademark Law 7 (5) and 8 (5) should be applied even if the application filing was made prior to the cancelation filing, considering the above fact and the intent of Trademark Law.