징벌적 손해배상 도입에 따른 상표법상 간접침해규정의 재검토

For the protection of trademarks and trademark right holders, criminal remedies as well as civil remedies are available under the current Trademark Act. In addition, so-called punitive damages are also introduced in the Trademark Act to strengthen the protection of trademark right holders. However, since the punitive damages substantially serve as a criminal punishment, it is concerned that the role of the punitive damages will overlap with that of the criminal punishment considering the punishment provisions of Article 230 of the Trademark Act. Reviewing the regulations on trademark infringement, it is proposed to abolish the offense of infringement and make good use of the punitive damages instead. As the first proposal, direct infringement should be legislated in Article 108(1)1 of the Trademark Act. With this amendment, it shall be consistent with the current provisions of Article 108(1)2 stipulated as indirect infringement. As a result, Article 108(1)2 will also be subject to direct infringement. In this amendment, the criminal punishment against indirect infringement is restricted as in the present. As the second proposal, since it is sometimes difficult to distinguish between direct and indirect infringements due to the diversity of trademark usage, etc., it is proposed to amend the Trademark Act to eliminate the distinction between direct and indirect infringements. In this way, when the distinction between direct and indirect infringements is eliminated, it is proposed to abolish the offense of infringement. It is desirable to make good use of the punitive damages to prevent crimes related to trademark infringement.