중국 상표법 개정에 따른 우리나라의 시사점에 관한 고찰
A Study on Implications of Amendment of China Trademark Law
이인혜(한국지식재산연구원); 이헌희(한양대학교)
42호, 149~193쪽
초록
On August 2013, the People's Republic of China adopted the third amendment to trademark law. This new amendment law focuses on multiple measures to facilitate trademark registrations, further safeguard the fair and competitive market order, strengthening protections to exclusive trademark rights. This amendment law is more efficient than the previous one. To be more specific, the new law accepts multi-class applications, online applications system, and non-traditional trademark(but only sound trademark). Also, it changes that opposition procedure which limits the opponent of prior right cases from any entity to prior right owner of interested party. In some parts, legal clarity is substantially improved by this amendment with dividing into invalidity and cancellation system; defining the trademark use notion; establishing criteria for well-known trademark. In other parts, protection level on trademark is elevated and advanced stages, as the law refers the duty of good faith; enters into details about prior use rights; adopts the punitive damages and higher fine for violation. With this Chinese modified law, there are many similarities between Korea and China trademark law. In trademark application procedure, China changed applications system from single class to multi-class applications which Korea also adopted. Additional revision procedure is established without revision of commissioner in Trademark Office. It could be clear legal effects by division between trademark invalidation grounds and cancellation one, and by definition of trademark use. There are differences as there are such similarities. Enacting time limits on examination in Chinese law is worthy of notice, this can be affect reduction of backlogs. For this reason, China also statutes the limits on the opposition procedure. Especially it is noticeable protection provisions: punitive damages and increasing the amount of statutory damages(RMB 3 million). And it was strengthened the statutes on the duty of agent or representative of the person who is the owner of a trademark application. These changes could be affect two countries relationship, especially Korea-China FTA, RCEP, and TPP. And I hope this article be useful of having a strong tie between two countries.
Abstract
On August 2013, the People's Republic of China adopted the third amendment to trademark law. This new amendment law focuses on multiple measures to facilitate trademark registrations, further safeguard the fair and competitive market order, strengthening protections to exclusive trademark rights. This amendment law is more efficient than the previous one. To be more specific, the new law accepts multi-class applications, online applications system, and non-traditional trademark(but only sound trademark). Also, it changes that opposition procedure which limits the opponent of prior right cases from any entity to prior right owner of interested party. In some parts, legal clarity is substantially improved by this amendment with dividing into invalidity and cancellation system; defining the trademark use notion; establishing criteria for well-known trademark. In other parts, protection level on trademark is elevated and advanced stages, as the law refers the duty of good faith; enters into details about prior use rights; adopts the punitive damages and higher fine for violation. With this Chinese modified law, there are many similarities between Korea and China trademark law. In trademark application procedure, China changed applications system from single class to multi-class applications which Korea also adopted. Additional revision procedure is established without revision of commissioner in Trademark Office. It could be clear legal effects by division between trademark invalidation grounds and cancellation one, and by definition of trademark use. There are differences as there are such similarities. Enacting time limits on examination in Chinese law is worthy of notice, this can be affect reduction of backlogs. For this reason, China also statutes the limits on the opposition procedure. Especially it is noticeable protection provisions: punitive damages and increasing the amount of statutory damages(RMB 3 million). And it was strengthened the statutes on the duty of agent or representative of the person who is the owner of a trademark application. These changes could be affect two countries relationship, especially Korea-China FTA, RCEP, and TPP. And I hope this article be useful of having a strong tie between two countries.
- 발행기관:
- 한국지식재산학회
- 분류:
- 법학