상법상 상호권 보호의 재조명

A trade name, if combining with a particular product, does more than a mere name, allowing one to associate it with its products and business. In particular, if such a product or service, with the backing of huge costs, dominates the market, the trade name will be more meaningful than its simple function. In this case, a trade name functions as a trademark (or a service mark), and should be distinguished from a name of a merchant under the Commercial Law. As such, in protecting a trade name, the protection principle under the Commercial Law and the protection principle for the prevention of unfair competition are different from each other, but South Korea's Commercial Law involves a unfair competition factor in protecting a trade name, raising problems surrounding the two legal systems. This may cause disputes between holders of rights to a trade name and potential merchants to have rights to choose a trade name. Notably, small-operation businesses continue to emerge and fade out, and a number of online businesses over the internet are emerging. The inadequate protection of a trade name under the Commercial Law limits potential merchants' the right to choose a trade name, probably blocking them from entering the businesses. Thus, this paper clarified the protection of a trade name under the Commercial Law and the protection of a trade name under the Unfair Competition Prevention Law, and discussed the improvement of the trade name protection under the Commercial Law. A trade name as a name of a merchant, and trade mark as a mark of a business are different from each other in their legal grounds, systems, purposes, and rights, making them stand alone legally. Nonetheless, a trade name can be used as a trademark for its products, and a trademark can also be registered as a trade name and used. However, a trade name represents a particular business, and if a third party uses such a trade name unfairly, thereby causing damage to the business entity and committing an unfair competition, that corporation should be protected under the Unfair Competition Prevention Law. In this case, such protection is provided not because the trade name is a name of a particular merchant, but a particular business itself. Thus, Article 23 of the Commercial Act stipulates that anyone shall not use a trade name - for an unfair purpose - that misleads one into believing that it is a business of a different person, and this should be handled under the Unfair Competition Prevention Law. This provision of the Commercial Act constitutes a confusion about the purpose of protection of the two acts. Also, Article 23(4) of the Commercial Act stipulates that any person who uses the registered trade name of another person in the same Seoul Special Metropolitan City, Metropolitan City, and Si/Gun in respect of the same kind of business shall be presumed to have done so for unfair purpose. The said "unfair purposes" means an intention for unfair competition, resulting in transferring the burden of proof by presuming intention for unfair competition to registration of trade names. However, the trade name registration system has various limitations such as formal review, incompleteness of the review process, and inequality against a foreign trade name. Nonetheless, if presuming unfair purposes with regard to a trade name registration is allowed, a good-faith user of the relevant registered trade name may prove himself to be innocent of such an unfair purpose. The protection of a trade name with a view to preventing unfair competition will be approved if its identification and trading ability are recognized. If a trade name has a weak identification and trading ability, its protection should be reduced. However, without considering this distinction, Article 23 of the Commercial Act allows presuming unfair purposes, namely, unfair competition purpose, with regard to all registered trade names, allowing one to ask for the repealing of a trade name without considering its identification or trade ability. This constitutes a confusion about the purpose of protection of the said two laws. The protection under the Commercial Law should focus on the legitimate use of a trade name, its benefit and disposition. On the other hand, unfair competition factors related to business marks with acquired identification ability should be regulated by the Unfair Competition Prevention Act or the Trademark Act. Thus, Article 23 of the Commercial Act should be legislatively reviewed.