부정경쟁방지법상 이른바 ‘저명상표 희석범죄’의 기수시기

Today, well-known trademarks are universally protected in many countries. Korea is also protecting well-known trademarks under the Unfair Competition Prevention and the Trade Secret Protection Act (hereinafter referred to as the Unfair Competition Prevention Act) in line with this international trend. The Unfair Competition Prevention Act requires that a well-known trademark dilution crime must be meet the requirements of well-known trademark, the use of identical or similar trademark, impaired discernment or reputation (dilution). However, if the use is for a valid reason, it is not illegal to act as a law. The requirements of a well-known trademark dilution crime do not describe the possibility (risk) of blurring or tarnishment. Therefore, it should be interpreted as a depriving offence, not a endangerment offence. Therefore, it is completed when the blurring or tarnishment of the well-known trademark actually occurs. However, it is questionable that criminal punishment is excessive regulation because the act of diluting the well-known trademark is to infringe on the personal interests of the owner, regardless of confusion. Punishment is a very strong sanction, so it should be the ultima ratio (last resort). The principle of the ultima ratio of criminal law is no exception to criminal liability related to unfair competition. Therefore, through a strict analysis of the compositional requirements of well-known trademark dilution crime, a harmonious solution with the principle of the definiteness and ultima ratio should be sought.