상표법에 손해배상액 증액제도를 도입할 필요가 있는지 여부에 관한 검토

In 2019, treble enhanced damages system was introduced into the Korea Patent Act and the Korea Trade Secret Act. Taking advantage of such trends, some argue that such system be introduced into the Korea Trademark Act. As such system was introduced into the Korea Patent Act, would the same be possible or proper in the Korea Trademark Act? In order to answer the question, this paper analyzes statutory damages system and enhanced damages system in some major countries. As results of such analysis, it was understood that (1) many countries (like South Korea) have introduced statutory damages system and (2) only a limited number of countries, such as the U.S.A. and China, have introduced enhanced damages system to their Trademark Acts. From the viewpoint of comparative study, the necessity to introduce enhanced damages system into the Korea Trademark Act is not strong enough. Reminding that there were at least ten papers, which examined such necessity to introduce enhanced damages system into the Korea Patent Act, this paper argues that similar examination and evaluation be necessary to introduce such system in the Korea Trademark Act. It is also necessary to check whether statutory damages system alone is not enough to properly protect trademark right. Furthermore, it is very important to examine status quo on damages amount, request acceptance ratio, character of two parties (large, medium or small enterprises, etc.) in the trademark infringement litigations. Introduction of treble enhanced damages system without such examination and evaluation, would be premature and would possibly invite trademark trolls. In one hand, it is important to introduce enhanced damages system to properly protect trademark right, on the other hand, it is also very important to sufficiently examine necessity of such introduction.