부정경쟁방지법에 의한 디자인의 상표적 보호 -2013년도 대법원 판결을 중심으로-

The topic of this article is the trademark protection for designs under the Unfair Competition Prevention Act (UCPA). UCPA Article 2 Paragraphs Ga to Da protects marks or names which indicate sources. Therefore, 2 or 3 dimensional designs of products, containers, and packages can be protected as source-indications, only if they are distinctive and famous in Korea. However, as the original function of designs is not indicating sources, they do not have ‘inherent distinctiveness.’ Thus they need to show ‘distinctiveness acquired by use’ for protection. Designs would already have become famous in Korea by the time they became distinctive. There were three Supreme Court cases which determined trademark protection of designs; ‘Cook Book Cover case,’ ‘Portmerion case,’ and ‘Louis Vuitton case.’ In those cases, the Supreme Court held on the major three issues in protecting designs as source-indications; the source-indicating function of the plaintiff’s design, the source-indicating use of the plaintiff’s design by the defendant, and the conflict between the unfair competition right of a famous mark and the registered design right of that mark. Requiring source-indicating use for both subject matter and infringement condition functions as a safeguard against attempts to monopolize the market itself beyond indications of sources, and to monopolize ideas or designs which lacks non-obviousness, secrecy nor creativeness.