대한민국 특허(상표)제도의 문제점(VIII) ―지리적 표장에 대하여―

Until the Lanham Act of 1946, a geographical name could not be registered as a trademark because the prohibition against a geographical mark is similar to that against surnames. The bar against geographical marks is merely a variation of the bar against descriptive marks. Thus, a geographical mark is prohibited only if the term is primarily geographically significant with respect to the particular product in the market in which it is sold. A geographical mark is analyzed into a geographically descriptive mark or a geographically misdescriptive mark. A geographically descriptive mark is prohibited for other competitors' interest, while a geographically misdescriptive mark is prohibited for protection of consumers who might be confused or deceived from the wrong information on the geographical name. If an otherwise geographical term conveys something other than geographical significance, it fundamentally is arbitrary, because its relationship to the product is not natural but contrived and unrelated to any inherent meaning in the mark. Based on the concept above of the geographical mark, the provision, at Article 6 Section 1 Paragraph 4 of Korean Trademark Law, that a well-known geographical name is not registrable for trademark is against the concept. It is not clear and there are no standards to determine which geographical name is well-known. Primarily geographical significance should be measured with respect to the market and the goods of the applicant. The provisions of the Trademark Examination Manual based on the provision of the Trademark Law causes a lot of controversy. Both provisions shall be deleted from the Trademark Law and the Manual.