특허·상표·저작권에 걸친 소진원칙의 통합적 분석 제안: 미국의 최근 동향을 중심으로

The equally important thing in reality as much as unification ofspecific legal theories about exhaustion doctrine is to take a consistentposition in one direction between infringement and non-infringement,not abandoning the legal results of the application of exhaustiondoctrine to split between infringement and non-infringement accordingto a specific area (patent, trademark or copyright). The U.S. SupremeCourt’s recent decision in Kirtsaeng case arguably opened somepossibility for achievement of consistency by probably recognizing theinternational exhaustion, in other words, parallel importation over all IPareas including patent, trademark and copyright even though the UScourts had shown disharmony by rejecting the international exhaustiondoctrine in patent and copyright areas while recognizing the doctrine intrademark area. Of course, some careful consideration should be takenabout specific concerns such as any overturning legislation by UScongress in the future when expecting that US will actually move to thatdirection. From the standpoint of Korea, the more reasonable attitude wouldbe to maintain consistency in recognizing the international exhaustiondoctrine over all IP areas by expand the applicable scope of the doctrineto not only the copyright area which the US Kirtsaeng decision justadded for playground of the doctrine but also the patent area which isstill under debate about the possibility for the application of the doctrine beyond the trademark area in which the Korean Court has alreadyclearly recognized the doctrine because Korea has relatively moredepended on international trade and neighboring Japan has already takenits position to expand the international exhaustion doctrine to patent,trademark and copyright areas.