패션디자인 보호를 둘러싼 분쟁양상과 법적 쟁점 - 저작권법 ․ 디자인보호법 및 부정경쟁방지법상 판례를 중심으로-

This paper suggests that Copyright Approach appears to be better alternative for protection of fashion design when compared to design law or unfair competition law. However, for the solutions to the problems of implementing copyright for fashion, the Copyright Protection of fashion design is necessary to meet realistic needs and provide a realistic duration. In sum, the Copyright Act provide substantive protection to fashion design. In sum, a more substantive, stronger protection of fashion design can be found through the Copyright Act as works of applied art. This paper will be described with the following;In section Ⅱ, this paper will discuss whether or not fashion design currently is or could be protected under the copyright law, highlighting existing doctrines on useful articles and separability and comparing the US and Japanese legal approach to copyright protection for fashion design. The current copyright law will be maintain settled copyright principles concerning physical or conceptual separability and the useful article doctrine. However,highlighting the legislative intent of the provisions of works of applied art under the current copyright law, the court must not be continuing to uphold the traditional, restrictive interpretations of the Copyright Act and its provisions of works of applied art. Consequently, it is necessary to adopt a limited duration applied to the appropriate protection of fashion designs in addressing the concerns of the overprotection suchlike long-term duration (during the survival of the author and until 50 years after death). In section Ⅲ, this paper will discuss whether or not fashion design currently is or could be protected under the unfair competition law. Under the unfair competition law, a designer must show that the sale of a copy is likely to confuse the public, because the public has acquired a secondary meaning for mark. Fashion is notoriously ephemeral and transient. In fact, by the transient and seasonal nature of the fashion industry, the majority of designers will be defeated. Thus, the Dead Copy Prohibition provision was newly established and introduced as an act of unfair competition as Article 2,subparagraph (1), item (Ja) of the amended Act of Unfair Competition Law of 2004. The protection period is very short, only for 3 years as the minimun investment pay-back period. In section Ⅳ, this paper will discuss whether or not fashion design currently is or could be protected under the design law. Under the current Design Protection Act, protection is granted to a new, original and ornamental design for an article of manufacture. However, fashion designs have frequently held to have failed these requirements in the court decisions. Even if they met these requirements, the design right is difficult and expensive to obtain, and entail a lenthy examination process. According to an commentator, design law would appear to be a poor fit fashion design. Thus,A non-examination design registration system(Article 2, subparagraph (v))was introduced under the former Design Act(enforced on March 1, 1998). The design registration procedure of Korea is characterized by being referred to as the double track. In section Ⅴ, this paper will summarize conclusions.