상표상품의 품질과 상표권의 소진

In trademark exhaustion, the quality assurance function of trademark needs to be thoroughly considered. There are increasing cases in that the license agreement between licensor and licensee of trademark may block the exhaustion of trademark. This study focuses whether (i) how to separate the substantial conditions of license agreement and mere covenants, (ii) whether the quality of goods should be considered as a substantial condition of license agreement, and (iii) if so, how to define the quality of goods with respect to trademark exhaustion. The author thinks that the trademark owner should be allowed to exercise her trademark to ensure the quality of licensed goods to some extent. For this purpose, this article tries to distinguish between functional aspects of quality of goods and intangible/aesthetic quality of goods. This article concludes that it is imperative to block the exhaustion of trademark when it comes with the functional quality of goods, i.e, when the licensee does not comply with the quality control process which was firmly established by the licensor. However, as to the intangible/aesthetic quality of goods, the rule of exhaustion of trademark should remain same to protect the consumers.