상표법상 법정손해배상에 관한 비교법적 고찰 － 고의의 차별적 취급 및 사용요건의 강화를 중심으로 －

In a trademark infringement it is very difficult to prove damages because of its intangible character than general tort damages. Therefore, to achieve the purposes of trademark system at least in willful trademark counterfeiting it is needed to reduce owner's burden to prove damages innovatively and statutory damages can make such a role. However, the current statutory damages in trademark law recently came in through the Korea - U.S. Free Trade Agreement left room for various improvements. First, it is needed to enhance the upper limit of statutory damages twice if defendant's willful infringement is proved that is to say the defendant had knowledge that its actions constitute an infringement. Statutory damages have compensatory purposes for actual damages as well as corrective function to trademark infringements. Consequentially statutory damages can feature punitive civil liability. Thus, putting willfulness and negligence in the same category in statutory damages regime is inadequate. Furthermore excluding the presumption of willfulness in statutory damages should be accompanied. If the upper limit enhanced statutory damages are subject to the presumption of willfulness uniformly, statutory damages can be against equity and so-called brand hunters may use statutory damages wrongfully. Then, to prevent abuse of statutory damages strengthening a bona fide use requirement is necessary. In detail, it is needed to be recognized that the trademark express a specific person's products, otherwise require using more than three years. In trademark system with an emphasis on the public interest aspects statutory damages regime has more strong points than other intellectual property law. To amend statutory damages still in the early stages of implementation rationally and revise it to prevent distorted application, our trademark system is able to get one step further to establish a sound trading system.