부품에 적용되는 지식재산권 문제 - 디자인과 3단계 테스트, 그리고 상표 -

It is long recognized that the competition shall remain free. As a counterpart thereof, it has been tried –amongst States- to function to protect IP more effectively. According to the today’s dense protection of IP, it has become more and more difficult to make a policy to promote the market-oriented competition. The market for repair parts have been dealt with as a new sources of capital which the automobile industry can retrieve relatively cost-effectively. They invest not much capital into the R&D innovation, whereas they use their monopoly from IP to increase the price of them. The third-party spare parts prevent, however, the automobile manufacturers from its full control over the competitive environment. In the EU, it is expected that a new clause in the law of design protection could serve as a guardian of the secondary market for repair parts, as an exception to the exclusive right of the design-right holders would be provided for. A compromise was hardly met, which only affirms the difficulties to harmonize the laws of its Member States. Even though the design law solution can assist loosing the monopoly over the secondary market, it is only a first step to resolve the issue. The Three-Step Test, which provides for standards for national measures that will reduce the extent of exclusive rights of IP holders, applies now for all areas in IP as provided in TRIPS. The Test seems to be a challenge for such a legislative measure of this art. Even if a national measure can comply with the Test, the trademark protection may also play a role as safe harbor for the original manufacturers. Repair parts bearing their trademark cannot be reproduced and/or put into the (secondary) market without the consent of trademark owners. It makes the manufacturers of the original engage in the strategy toward a more trademark-oriented approach in order to protect themselves from loosing their monopoly power. These further questions might be not considered seriously enough in the discussion. It is nothing but the failure to conceptualize relations of legal institutes in IP. In order to guarantee the liberal competition in the secondary market, the possible solutions must be considered in a wider context of IP and competition law as well as in a more interdisciplinary manner.