부정경쟁방지법상 보호되는 영업표지로서의 제호에 관한 소고 -뮤지컬 ‘캣츠’사건을 중심으로-

Under Unfair Competition Prevention and Trade Secret Protection Law("UCPL"), the term ‘acts of unfair competition’ means an act of causing confusion with another person's commercial facilities or activities by using marks identical or similar to, another person's name, trade name, or emblem, or any other mark indicating another person's business, which is widely known in the Republic of Korea. The application of UCPL to the title, a prerequisite to be a business mark referred to in UCPL, was not the case in this situation, since the title lacked such a precondition. The title 'Cats' did not display the function of indicating source by specifying the 'RUG' company, as well as plaintiff ‘Seol & Company’, and also the defendants did not use the title ‘Children's Cats’ as a business mark. Even if using the title 'Children Cats' is the act of unfair competition under UCPL, ‘Fair Use Theory’ is applied to UCPL since the Government promotes the fair use of intellectual property and shall endeavor to prevent abuse of intellectual property rights under Framework Act on Intellectual Property. 'Cats' in the title used by the defendant’s Children Cats is nothing but merely to point to the contents of the musical with ‘Cats’. And it is not showing business mark of the RUG as well as the plaintiff. Since the defendant has used 'Cats' in order to explain their musical case to ‘descriptive fair use’, this does not correspond to unfair competition.