비전형상표 도입에 관한 법적 고찰

The trademark is typically any character(s), figure(s), sign(s) or three-dimensional shape(s), or any combination thereof to indicate the source of the goods in commerce. Also there are non-traditional trademarks which do not fall into the standard categories, such as those based on color, smell,or sound and the like. This paper has 2 parts to analyze how the non-traditional trademarks can meet the protection requirements as the trademark and how the possible legal problems can be solved when the new trademarks are introduced. The former can be comprehended by describing the existing protection situations of U.S., EU, Japan, and South Korea. And the latter has 4 assignments to work out like this. The first is that 2008 Korean trademark bill for partial amendments(2008.10.13) asks the non-traditional mark to satisfy with the 'graphic representation' condition for registration. It focuses on those of smell marks and sound marks. The second is that the specific commercial features of non-traditional trademarks can make up the 'distinctiveness' condition. Smell marks also need to fulfill the condition. And it analyzes the possibility of re-introduction of the disclaimer on non-distinctive parts, which is an announcement by the trademark holder who does not have exclusive right for the use of any portion of that mark. The third is about functionality theory. The existing trademark prescribes color mark and its related functionality. This paper challenges the legal interpretation on color mark functionality of Trademark manual of Korean patent office, and analyzes a case(the Korean Patent Court 2001.3.30). The final considers whether a design which has been protected by the design law could be protected by trademark registration. And it gets a conclusion that the trademarked design is to be protected as a trademark under stepped-up functionality condition.