상표판례를 통해 본 한국과 미국의 상표침해이론 비교 및 침해기준 조화를 위한 상표정책 방향

During the 2006-2007 negotiations of the Korea-US free trade agreement, the US delegation asked the Republic of Korea to accept the 'related goods doctrine' of the American infringement standards. The Korean Intellectual Property Office (KIPO) rejected the 'related goods doctrine' due to the potential distortion or even breakdown of the Korean trademark system. A subsequent review of 'the literature, law, and cases' of both countries revealed five major insights. First, the likelihood of consumer confusion in the US and the doubt or misgivings over consumer confusion in Korea are critical tests for trademark infringements. Second, both the 'related goods doctrine' in the US and the 'similar goods theory' in Korea have such a close resemblance as to be substantially the same. The resemblance stems from the highly abstract nature of the contrasted concepts themselves. From a semiotic point of view, the extension and intension of the concepts of the 'similar' and 'related' are broad and flexible, depending upon the contextual circumstances. Third, three tests in the US trademark infringements(ⓐ the likelihood of confusion; ⓑ the related goods doctrine; ⓒ multi-factor tests) are closely interwoven and inevitably form a triadic structure. Likewise, three infringement tests in Korea(① the doubt or easiness of confusion; ② the similar goods theory; ③ discretional multi-factor tests) form a triadic structure, just as it is in the US. Fourth, the problems with the elusive and obscure concepts of related or similar goods and consumer confusion are resolved by the multi-factor test for the conclusion of infringement decisions. Hence, the scope of related goods and similar goods is actually determined by multiple factors. Accordingly, multiple factors are the ultimate key to defining the extension and intension of the concepts of 'similar' and 'related' in the resolution of trademark infringements.