상표법상 권리와 부정경쟁방지법상 권리의 충돌문제 - 대법원 2000. 5. 12. 선고 98다49142 판결을 대상으로 -

In Korea, Well-known and famous trademarks have two kinds of protecting methods(laws). The one is Trademark Act, another is the Unfair Competition Prevention Act. Trademark rights under the Trademark Act are granted only to those who have their own trademarks registered, but Unfair Competition Prevention Act grants remedies to all the owners of well-known marks whether they are registered or not. Two kinds of methods essentially have conflicting elements. To solve the problem, article 15 of the Unfair Competition Prevention Act provides that in cases of any conflict or inconsistence the Trademark Law applies instead. But Supreme Court of Korea has interpreted Section 15 differently from its literal meaning. The interpretation by the Supreme Court of Korea appears to provide well-known and famous trademark owners with strong protection at the expense of registered trademark owners. when registration of well-known marks by somebody other than their owners constitute unfair competition, the registration is regarded as an abuse of trademark right and, consequently, the registrant are not allowed to rely on the Trademark Act. Our civil law regulates "Principle of Trust and Good Faith"(Article 2). this principle rules the trademark act, too. But this principle should be applied carefully in the trademark act. This paper examines how the rights of registered trademark are restricted in the perspective of the unfair competition prevention law when famous or well-known mark and registered one exist concurrently. To find out the appropriate way of solve such problems, this paper study so-called ‘VIGEVANO’ case and the relationship between trademark act and unfair competion prevention act.