상표법에 의한 제품 형태 보호의 문제점과 그 대응방안- 비아그라 사건에 대한 전망을 중심으로 -

It is no doubt true that consumers are capable of recognizing the distinctive character of a product’s shape, to the extent that they may even be confused as to the origin of two identically shaped products which bear different word marks. Hence, registration of three-dimensional marks such as a product shape or its packaging should not be denied on the assumption that the public needs to be educated to see them as trade marks. Where the shape possesses special characteristics and the public perceives such shape as departing from the usual and expected shape of the category of the product concerned, it can neither be held to be part of the public domain nor denied registration. These special characteristics may be achieved through an application to the respective product shape or its packaging of two-dimensional features such as verbal or figurative elements and colours necessary to trigger a special impression produced by the three dimensional architecture. However, whether a product configuration mark can ever be considered inherently distinctive or must have acquired secondary meaning is somewhat vague and unsettled, as will be discussed herein. This article will discuss the level of inherent distinctiveness and acquired distinctiveness necessary to protect product configurations as trademarks. Finally, this article will provide guidelines and suggestions to help our 3-dimensional mark protection policy for a product’s configuration under current trademark law.