냄새상표의 보호 -미국법과 E.U.법에 대한 분석을 포함하여-

A scent mark is introduced in 2011 as the result of Korea-U.S. Free Trade Agreement. Before 2011, only visual signs could be protected as trademarks under Korean Trademark Law and 2011 amendment extends protection to non-visual marks. In the U.S., Lanham Act does not stipulate clearly the protection of a scent mark, but since TTAB admitted protection of the scent mark in Clarke, scent has been recognized as a mark to be protected under Lanham Act. Also E.U. regulation describes protection of a mark which can be represented graphically and ostensibly a scent mark may be expressed graphically. Even though a scent mark is included into protected marks legislatively, a scent mark must be recognizable objectively to satisfy some requirements for registration. First of all, it must be described or represented graphically. Under Korean and U.S. law, a scent mark has to be described and a specimen must be submitted. However, in E.U., Office for Harmonization in the Internal Market denies the possibility of graphical expression on a scent mark. Thereby, a scent mark cannot be protected in E.U. Even in Korea and the U.S., other obstacles bar protection of a scent mark: distinctiveness and functionality. A scent mark is hard to be inherently distinctive and usually acquires secondary meaning by use. However, there is possibility that the use of a scent mark makes the mark itself functional. Therefore, in the U.S. since 1990, a scent mark has been registerable, but very few scent marks are actually registered. Moreover, considering a complicated process and nature that scent is detected by a human being, a scent mark may not be proper to be protected as a trademark. However, protection of a scent mark is already resolved legislatively and then, it is not a proper time to discuss validity of a scent mark. Under the current situation, it is advisable that methods to register and protect a scent mark must be researched more thoroughly and until completion of the research, registration or protection of a scent mark need to be restrained.