부정경쟁방지법 제2조 제1호 (자)목이 규정한 상품형태의 요건

Article 2 subparag. 1 item (i) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter the “Unfair Competition Prevention Act”) provides for the protection of shape of goods as the subject matter of protection against unfair competitive act, even when it falls short of what is otherwise required for protection, such as design registration. Under said provision, petition for injunction against counterfeiting of a shape of goods and damage compensation for counterfeits are recognized. The purpose of said provision is to offer an additional layer of protection against counterfeiting of a shape of goods as a type of unfair competitive act, which was only eligible for limited protection under the existing structure of intellectual property law. In so doing, said provision aims to prevent any unfair competition by means of free-riding on prior developers’ endeavors, while incentivizing new development of goods. At the same time, said provision puts in place a mechanism to ensure that protection of the shape of goods does not unduly restrain market competition, by excluding from the scope of protection the shape ordinarily featured in the same types of goods and the shape of goods for which three years have passed from the date of its completion. Said provision protecting the shape of goods under item (i) was introduced upon the amendment to the Unfair Competition Prevention Act by Act No. 7095 of Jan. 20, 2004. It appears that the standard of determination in practice and precedents on the requirements for the applicability of said provision have yet to be accumulated. Supreme Court precedent on this point tends to be particularly rare. Although in Supreme Court Order 2006Ma342 Dated October 17, 2008, the Court explained about the meaning of the shape of goods under said provision, the Order pertained to the requirements for a container or packaging of goods to constitute a shape of goods. In the subject case, by contrast, the question presented is whether an instantly manufactured ice cream product constitutes a shape of goods. The significance of this case is that it specifically delineates the requirements for constituting a shape of goods by: (a)　requiring a fixed form, as well as a unique form enabling the perception of goods by the appearance alone, in order to be eligible for protection as a shape of goods under the Unfair Competition Prevention Act; and (b) determining that protection as a shape of goods is unavailable in the absence of a consistently fixed form across the goods, even when there is identity of idea constituting the shape of goods, distinctive form, or function.