명품 패션잡화 분야의 공정한 상관행과 부정경쟁방지법 제2조 제1호 (카)목 - 대법원 2017다217847 판결(‘에르메스 눈알가방’ 사건)의 검토 -

In 2020, the Supreme Court held that defendant's act satisfied the general provision of the Unfair Competition Prevention Act(UCPA), where the defendant added her own creative design to the well-known shapes of the plaintiff's and sold them commercially. It is justified that the Supreme Court paid attention to the process by which a new luxury fashion accessory brand circumvents trade practices in the same industry and gains recognition. There are criticisms that general provision of UCPA should not be applied to this case, but considering the purpose of the legislation, this is not justified. In addition, there is an opinion that defendant's appropriation could be interpreted as causing ‘confusion as to the product source’ of Ga-Mok of UCPA because the defendant’s actions in this case may cause mis-understandings as ‘collaboration’. However, there is a problem that there is little possibility of confusion in trademark area due to a competitive relationship that mainly deals with the same product. In order to evaluate whether the new competitive type is against fair business practices, it is necessary to conduct a ‘holistic evaluation’ to make an objective judgment. In order to make that ‘holistic evaluation’ in the luxury fashion miscellaneous goods field, it is necessary to consider the hierarchical consumption relationship in luxury goods market.