상표의 동일·유사와 출처혼동 판단에 관한 주체적 기준

The trademark act has a dual purpose: protection of trademark owners and consumers. In order to achieve this purpose, the trademark act expands the scope of trademark rights to not only the same trademark as the registered trademark but also to similar trademarks, and not only to products identical to designated goods but also to similar goods. The sameness or similarity of a trademark, along with the sameness or similarity of a product, is the premise in discussing almost all issues under the trademark act: from the occurrence of trademark rights to the extinction of rights including trademark application, registration, exercise of rights, invalidation and cancellation of registration, etc. Moreover, as the protection of well- known trademarks has been expanded and dilution protection has begun to be recognized, the role of product similarity is weakening, while the judgment of sameness or similarity of marks still maintains an important position. Despite that, the judgment on the sameness or similarity of a mark cannot be made without considering the correlation with the product. In particular, the similarity of a mark is judged from the perspective of the average consumer, and then who the consumer of the product or service is important in judging the similarity of the mark. Trademarks are the media that enable consumers to choose the product they want through the source indication function. However, trademarks only allow consumers to distinguish products, and what actually affects the consumer choice is product attributes such as the price and time, complexity of transactions, and transaction frequency etc. Moreover, these factors also affect the distinctiveness of the trademarks. If the judgment of trademark similarity is made from the perspective of average consumers without considering these factors, the scope of similarity may be too wide or narrower than from that of actual consumers. Therefore, it is needed to establish the judgement criteria of the subject by reflecting the features of the product itself and the product transaction rather than maintaining the average consumer standard as in the past.