판촉품의 판매에 따른 상표의 사용 인정에 대한 비판적 고찰 - 대법원 2013.12.26.선고 2012후1415 판결을 중심으로 -

Goods in Trademark law are referred to as material things disputed in trade. They have meanings of distinguishing trademarks from each other in distribution. They are the subject dealt repeatedly and worth distinguishing goods. Indicating a trademark on promotion goods isn't the use of a trademark because they are advertising media materials without exchange value and aren't independent in trade. Japanese decisions and theories mentioned independence, distribution, exchange value and payment, etc. as ingredients to define goods. The use of a trademark isn't recognized by one them but is recognized by all ingredients with independence. For determining the use of a trademark in a trial for cancellation of trademark registration on non-use, “Earnest use” and “intent and purpose on the use of a trademark” are considered in Germany. But Supreme Court Decision 2012Hu1415(the subject decision) is feared to cause misunderstanding and criticism about recognizing goods for the use of a trademark. The subject decision missed intent and purpose on the use of goods and recognized the sale of promotion goods as the use of a trademark. This paper studies the subject decision critically on recognizing the sale of promotion goods as the use of a trademark based on Japanese and German interpretation.