등록상표의 불사용 취소심판에 관한 소고- 등록상표의 정당한 사용에 관한 판례의 분석을 중심으로 -

Trademark law has been aimed to promote good-wills developed by the trademark users and to protect consumers as well. In order to fulfill those goals, Korea adopted a registration system without requiring prior uses in commerce; however, which produces substantial number of registered but never-used trademarks. Trials for revocation of trademarks registration based on non-uses play a role to eliminate from the trademark registry, by which competitors can freely use or register those trademarks and the society fairly regulate the misuses of the rights to monopolise trademarks. Under the revocation proceedings, if a trademark has not been put to domestic use within a continuous period of three years, the trademark registration shall be revoked without proving rightful uses unless there are proper reasons for such non-uses; a token use merely to escape from revocation, however, would not be successful. While the definition of the term 'use of trademark' is formally stipulated, the concept of ‘rightful use’ in the revocation proceedings still has not been clearly grasped. Upon this question, the Korea Supreme Court found a standard that it depends upon whether it has being used, or duly anticipated to be used, in the ordinary course of trade; but which are still under developing. In this article, therefore, is dedicated to understand the concept of rightful uses, inter alia, especially focused on advertising purpose; for that purpose, reasonings and interpretations in the court decisions so far in Korea are analysed; and furthermore, the concept of trademark uses in other regimes such as ‘genuine use’ in the European Union and uses in commerce with bona fide intention or use in the ordinary course of trade in the United States of America would be useful guidance. The concept of rightful uses of trademarks in the revocation of trademark registration, in the long run, should be understood as one in the ordinary course of trade which varies from industry to industry, and be interpreted flexibly so as to encompass various genuine, but less traditional, trademark uses.