저작권과 상표권의 저촉ㆍ중복보호 등에 관한 법률문제

This paper is about the legal issues of conflict and overlap between copyright and trademark right. Where the contents of trademark filed for registration conflicts with prior copyright of other’s, the majority of countries legislate it as a cause of rejection and/or invalidation of trademark. Meanwhile, Korea and Japan vindicate such a trademark application as it is, while the trademark right can never be exercised against copyright holder. However, this is inappropriate as it imposes third party double jeopardy of enforcement by bilateral right holders, increasing ‘Trailing Cost’, which is against total welfare of society. Hence, this paper proposes to amend Trademark Act to adopt the cause of rejection and invalidation against trademark which conflicts with other’s prior copyright. Such jurisprudence shall enable the third party to bring ‘Abuse of Right’ defense against the enforcement of trademark which has foresaid flaw. It is unreasonable to allow blind double protection only that a trademark satisfies the standard of creativity for copyright. Considering copyright has its ground upon that it enriches cultural diversity and is to go into public domain after expiration, it is inappropriate to allow copyright protection for trademark which is beyond such a legal nature. Upon this basis, this paper proposes interpretation of law for deprivation or proportionated scope of right for the works of low or uncertain creativity. Furthermore, the copyright enforcement shall be estopped where a registration of a mark is cancelled for the penalty upon ‘unfair use rule’ of Trademark Act; cancelled for non-use or failure of renewal, providing social credit that the mark is released to public domain. Lastly, the copyright shall not be enforced as a measures to circumvent exhaustion rule on trademark goods.