품종명칭과 상표 간 비양립성에 관한 연구

Varietal names are designations given to cultivated varieties of live plants or agricultural seeds. These names can consist of a numeric or alphanumeric code or can be a fancy or arbitrary name. Market realities with regard to varietal names have created a number of problems in this area. When trademark registration is sought for varietal names, what is at issue is whether arbitrary varietal names can be thought of as being distinctive trademarks or not. Because varietal names intended as trademarks by plant breeders may be generic through public use. Furthermore, with regard to the reason that a varietal name can not be registered as a trademark, it is not clear whether the varietal name is qualified as a non distinctive trademark based on the article 6 of Trademark Acts or / and trademarks identical or similar to varietal names fall under the list of grounds for refusal for the registration of trademarks based on the article 7 of Trademark Acts. The rule of the separation of two denominations was asked very early in the UPOV(International Union for the Protection of New Varieties of Plants) in 1961, but it still remains a source of litigation. It must be noted that there can be a conflict between a variety denomination and a trademark. According to New Plant Variety Protection Act and the Trademark Act, conflicts between trademarks and variety denominations should be resolved on the basis of the general principle of “first in time, first in right.” However, the real issue of these adjustment provisions is less a question of conflict between the New Varieties of Plants Protection Act and Trademark Acts, but rather the need to adopt appropriate incompatible measures to protect public interests in accordance with the rules related denominations of the variety.