병행수입업자의 광고에 대한 판례의 경향 - 지식재산권과 부정경쟁방지법 사이의 경쟁관계 -

Whether parallel importation infringes the rights of the trademark owner has been resolved through the Korean government's guidelines in 1995 and 1997, and the precedent is not considered to infringe the trademark right itself in accordance with the government’s policy. Nevertheless, the court regards the use of the trademark by the parallel importer as an unfair competition act, and eventually make parallel importer not to attract the customer, thus making free competition impossible. In particular, there is concern that the Unfair Competition Prevention Act and the Tort Acts of the Civil Law will frustrate the laws of the intellectual property policy, such as copyright, patent, and trademark laws. In this concern, the judiciary should take a cautious attitude, but the precedents present a somewhat confusing conclusion. I think that the intellectual property law system is a special system that exists in accordance with the public purpose of cultural development or industrial development and in order to guarantee the use right such as fair use according to the ultimate purpose and policy. So we should make legal frameworks to balances of human creation and use in a large framework, and it is necessary to establish concrete and sophisticated standards for maintaining the consistency. Also, the legal policy of intellectual property system should be faithfully considered. From this point of view, judicial review of the use of trademark by a parallel importer as unfair competition practice or illegal act should be reconsidered.