상표권과 상호권의 합목적적 양립을 위한 상표법 개정방안 연구

Trade names as well are marks the can be considered as trademarks. Thus when trade names can function to display the origin of goods without trademark registration, the validity range of trade names can overlap on the validity range of registered trademarks. Therefore, the person who registered trademark can exercise claim for use of trade mark to the persons who are using same or similar trade marks for the same or similar goods or services. (Trademark Act article 65) However, The Trademark Act article 51.1.1 states that the validity of trademark authority is limited in case the trademarks are expressed with commonly used method, and thus the users can use same or similar trademarks to the registered trademarks as they are. The problem is that the legal provision hardly clarify what ‘the case of trademarks are expressed with commonly used method’ is and thus wholly depending on interpretation of the court. The court consistently uses the term ‘the case of trademarks are expressed with commonly used method’ as not only ‘expressing Trade names without distinguishable method such as unique calligraphic style, color or designed letters’ but also ‘the case where the consumers can recognize its trade name from its appearance. However, such interpretation by the court is deriving various problems in the reality. First of all, though the trade names expressed in unique calligraphic style, color, shape or designed letters are not considered as commonly used method, in the reality, there are many cases of expressing trade names with their unique logo rather than expressing with letters. At the same time, there are many cases using various calligraphic styled letters so that being off the validity of trademark authority. In such cases, after registering those marks used as trade name, the user who registered can claim prohibition of using same trade name by other users. Also, the exclusive authority can be neutralized when using same or similar trade names without specially designed letters. Therefore, through a clear legislation of law on the meaning of ‘the case of trademarks are expressed with commonly used method’ from The Trademark Act article 51.1.1, legal stability should be secured. Also, right of the users with legal authority on trademarks should be reinforced by assuming the copy of other’s trademarks after registration as vicious competition.