부정경쟁방지법 제2조 제1호 (타)목 해석의 쟁점 및 금지·손해배상 청구권자

Item (ta) of the Unfair Competition Prevention Act was enacted, but the specific background of the legislation was not explained in the documents of the legislative process. Therefore, in interpreting item (ta), it seemed appropriate to refer to the BTS case decision which served as a clue to the legislation of item (ta) and general interpretation of (pa), and also the existing discussion on the right of publicity. Item (ta) is a partial modification of the wording of item (pa), and is interpreted as a provision to protect the property value of the personality mark rather than requiring achievements from investment or effort. When judging the illegality of it, the discussion on the illegality of the item (pa) can be used in general, but the discussion on the restriction of the right of publicity, especially the freedom of expression must be taken into account. As item (ta) protects personality mark distinguishing the individual’s identity rather than the achievements, economic value from fame or customer attraction should be regarded as belonging to the entertainers themselves. This value must be regarded as inalienable for the same reason. However, if management contract is signed in accordance with the standard exclusive contract, the management company can be interpreted as a person who has a unique and legitimate interest to exercise the right to request for prohibition as stipulated in Article 4 of the Unfair Competition Prevention Act. Thus, management company might request for prohibition (or prevention) or further claim for damages under Article 5.