커먼로상 상표법의 형성: 영국을 중심으로

In this article, I study a historical development of common law trademark. In England, the trademark law had developed under both the common law and the equity. Because both system, the common law and the equity, were developed, the trademark history of England is very unique. At the beginning of the trademark case law history, common law trademark was strictly differentiated from the trademark law of the equity. The common law remedy for passing off is damages and the equity remedy for passing off is an injunction. A plaintiff, who wants to have both remedies, must bring a suit to the common law court and a suit to the equity court. After the Industrial Revolution, a concept of new property of trademark was gradually introduced. Under common law trademark, English common law courts focused on consumer deception in passing off suits. However, the common law trademark was not focused on providing a right to a consumer anymore. Rather a trademark owner, not a consumer, began to have a property right to a trademark. Gradually intention to deceit a consumer was not required to success in a trademark infringement suit. Meanwhile in an equity suit, the court gradually permitted an injunction to trademark infringement. During the 1840’s, some signs of the integration between the common law and the equity began to show. Later the common law court began to allow an injunction to the trademark infringement suit which was an original remedy of the equity court. Then, the equity court also rewarded the damages to trademark infringement. Finally, the British Parliament enacted an act to merge the common law court and the equity court. This concept of property on trademark influenced an English colony, the United States of America. The Korean concept of property on trademark might be influenced by the U.S. trademark law. At this point, the reason we have to exam the English history of trademark exists.