삼성전자와 애플사 간 특허소송의 현황과 과제 -한국과 미국에서 법적 보호의 비교를 중심으로-

In the present legal disputes between Apple Co. and Samsung Electronics Co. et al. in the United States and Korea, the main issues are: interpretation of FRAND commitment for the standard-essential patents, exhaustion of the process patents, determination of the infringement of design patents, legal requirements for the protection of trade dresses. Exhaustion of the standard patents of Samsung was differently ruled in the jurisdictions of Korea and the U.S. The incompatible decisions, however, seemed to be based on the differences in the fact-finding or interpretation of the scope of the license given by Samsung to the chip maker Intel, since the jurisprudence about the exhaustion of the process patents is well-established. Both jurisdictions concur in that the injunction itself does not comprise patent misuse just because of the fore-declared FRAND commitment. The significant differences between the two jurisdictions can be found in the determination of the design and trade dress infringement. In Korea, well-known components and not well-known components of designs weigh differently when determining the design infringement, whereas over all appearances are significantly compared in the U.S. Trade dresses can be protected within the system of the intellectual property law in Korea as well as in the U.S. For the trade dresses with acknowledged distinctiveness, they can be protected as registered and/or unregistered trademarks in the U.S. while they can be protected either as registered trademarks under the Trademark Law or unregistered well-known signs under the Unfair-Competition Law in Korea. Doctrine of functionality which is well established and consistently applied to restrict the scope of trademark is hard to be found to the cases on the trade dress in Korea. Confusion of trademarks generally has been interpreted to mean point-of-sale confusion, while post-sale confusion has not been expressly acknowledged in Korea. Confusion of well-known signs are determined with all the actual trade related aspects comprehensively appraised, which makes the likelihood of confusion for the well-known signs harder to be acknowledged than for the registered trademarks in Korea. In the U.S., anti-dilution provisions are applied without discrimination to the registered trademarks as well as unregistered trademarks; in Korea, however, the provisions are applied only to the unregistered well-known signs. This renders registered trademarks immune to the application of anti-dilution provisions.