역혼동과 상표권 남용의 관계에 관한 고찰 - 대법원 2014. 8. 20. 선고 2012다6059 판결을 중심으로 -

Reverse confusion occurs when the second user(Junior user) becomes better known than the owner of trademark right or the first user(senior user). In reverse confusion, the first user looses the opportunity to control its own reputation and goodwill and consumers even disrespect the first user assuming the second user is the original. Recently, Supreme Court decided on the relation between reverse confusion and abuse of trademark right concretely through Supreme Court Decision 2012Da6059 Decided August 20, 2014(hereinafter referred to as “the subject decision”). The subject decision states that though any other person use the mark identical with or similar to the registered trademark without a legitimate reason and the used mark acquire brand recognition of consumers after a trademark of trademark owner is applied and registered legitimately, goodwill and customer attraction of the used mark isn’t worth of protection as the effect made by infringement of trademark right. And the subject decision also states that abuse of trademark right can’t be applied to the exercise of the trademark right based on only brand recognition of consumers since principle of registration in our Trademark Act can be damaged if goodwill of the used mark is accepted like that. The subject decision has great historical significance since the decision states firstly that the second user(Junior user) can’t assert abuse of trademark right based on only brand recognition of consumers in case the second used mark acquire considerable brand recognition by the second use and reverse confusion occurs. But theory on reverse confusion related to infringement of trademark right needs to be established more clearly through the subject decision in academic circles and practice area. Especially, we should consider that a regulation of infringement of trademark right by reverse confusion and a legal basis on calculating damages related to that is established on the Trademark Act.