상표권 효력제한에 관한 비교법적 연구

Article 51 of Trademark Law is an important provision that limits trademark holder’s right. According to article 51(1), if one uses one’s own name or trade name under the ‘commonly used manner’ and without ‘unfair competition’, one can use it freely. And also descriptive mark can be used without any legal limitation under the condition of commonly used manner according to article of 51(2). But this provision does not effectively limit trademark right and does not protect one’s mark use. It is resulted from that courts do not interpret the ‘commonly used manner’ for the purpose of the fair competition of trade and mark user’s freedom of expression. The article 12 of Council Regulation of EC regulates the limitation of trademark holder’s right. To limit the right of trademark holder, the use of mark should be accorded with honest practices in industrial or commercial matters. And in the United States, to limit the trademark holder’s right the one’s name or descriptive mark should be used ‘fairly and in good faith’ according to article 1115(b)(4) of Trademark Law. These conditions – honest practices and in good faith – rightly show the scope of the fair use of trade mark. As long as the use of mark does not cause unfair competition among traders, it can be used freely. As discussed above, article 51 of trademark has systematic problem, so the condition of ‘commonly used manner’ should be deleted to reach the goal of limitation of trademark holder’s right. I recommend to revise the article 51 of trademark law. The only condition that should be considered to limit trademark holder’s right is whether he/she uses the mark fairy or not.