권리불요구제도 - 미국과 영국의 권리불요구제도의 검토를 포함하여

According to the concept of a trademark, very few visible elements can be a trademark and favored elements by customers are limited among them. In contrast, because the attitude to a trademark influences purchase of product,select of a trademark is critical to an applicant of trademark registration. Customers feel friendly toward familiar expression used in daily conversation,but such expression is impossible to be registered as a trademark due to its non-distinctiveness. However, considering correlation between a trademark and product sales, applicants may try to include familiar expression into a trademark and that increases a composite trademark. A composite trademark can be registered even though it contains a non-distinctive element if it is distinctive as a whole. For this composite mark, only distinctive part can be given trademark right, but the public mistakenly consider its whole parts to have trademark right. Disclaimer makes the extent of trademark right clear and helps a user to use the trademark without any fear of infringement. However, regardless of this merit, very few countries such as the U.S., U.K. etc adopt the disclaimer in their trademark systems and even these countries do not actively use the disclaimer. The reason to adopt the disclaimer is that they have a first-to-use system but the U.K. even has the provision to limit trademark right subsequent to registration. In Korea, the disclaimer was adopted in 1949, subsequently deleted and was discussed to be readopted in 2009. It was not adopted as a law at that time, but there is strong possibility to be re-discussed in the future. Under Korean trademark system, a first-to-file system, the disclaimer can be a way to overcome demerits of a first-to-file system. However, fundamental issues surrounding disclaimer in a first-to-file system are still in question. The disclaimer and the limit of trademark right under section 51 have the same result-limiting the extent of trademark right. Thus, if the issue of demarcating trademark right can be resolved properly in amending section 51, in my opinion, there is no need to introduce disclaimer into Korean trademark law.