가수 그룹의 명칭의 상표법상 저명성 판단에 관한 비판적 고찰

Determining famousness plays an important role about the trademark registration of the singer group’s name. As to the interpreting ‘famousness’ in Trademark law, a difference between ‘famousness of the name’ and ‘famousness of the trademark’ is suggested by the latest Supreme Court Decisions. Supreme Court Decision 2012Hu1033(hereinafter referred to as “2NE1 case”) has dealt with a standard for determining famousness of the name and Supreme Court Decision 2013Hu1207(hereinafter referred to as “Girls’ Generation case”) has dealt with a standard for determining famousness of the trademark. In the 2NE1 case, the Supreme Court stated that human target for determining famousness of the name could be limited to ‘relevant consumers or traders to the transaction of designated goods’. However, in the Girls’ Generation case, the Supreme Court stated that a trademark in prior use should acquire famousness by being widely known to most of the general public beyond those relevant parties to the transaction of designated goods. Therefore, the above may mislead people about determining the famousness in practice by suggesting a different criteria in human target between the name and the mark in Trademark law. On the one hand, Supreme Court Decisions lack consistency on determining famousness of the name and those are feared to cause confusion concerning determining famousness or well-knownness by determining famousness of the name and well-knownness of the trademark almost identically in human target in Trademark law. On the other hand, the duplicate application of concerned provisions may cause specific provisions to be no longer enforced practically. In conclusion, this paper studies critically on problems of determining famousness in Trademark law concerning these natures based on distinctive natures of the singer group’s name and proposes solutions by theory of legislation concretely on those problems.