상표법상 간접침해 규정의 법적 쟁점

Article 108 of the Trademark Act defines the “Acts Deemed Infringement”, in other words, indirect infringement of trademark rights. The article defines a series of preliminary or aiding or abetting acts in sub-paragraphs 2 through 4 of paragraph 1 of Article 108, which are not directly infringing on trademark rights but are likely to lead to direct infringement. The legal term ‘indirect infringement of trademark rights’ is not only used to refer to the infringements under the Trademark Act but the legal concepts related to direct infringement of trademark rights including the liability of joint tortfeasors by the civil law. In contrast to the fact that the term ‘indirect infringement of intellectual property rights’ is often used as a legal term, the IP laws use the words ‘acts deemed to be infringement’ as the title of the provisions. Such titles lead to an opinion that it would be appropriate to use the term ‘act deemed infringement’ than use the term ‘indirect infringement’ in IP laws. However, the intellectual property laws including trademark law have been widely using the term ‘indirect infringement’. For my usage in patent law cases, I have been referring to the term ‘indirect infringement under patent law’ to distinguish it from the ‘joint torts liabilities of civil law’ or ‘contributory infringement/infringement by the inducement of U.S. law’. Applying the same approach, this paper will also refer to the activities that are deemed to be infringement under trademark law as indirect infringement under trademark law. While there have been a substantive amount of studies on indirect infringement under patent law, there have been relatively few studies on the legal issues of indirect infringement under trademark law. This article reviews the provisions of indirect infringement under trademark law, conducts comparative law research on foreign legislations, summarizes the legal issues of Korean law, and suggests systematical solutions to necessarily solve the legal issues raised above.