상표법상 ‘상호의 상거래 관행에 따른 사용’ 요건에 관한 연구

The Korean Trademark Act protects persons or companies who use their trade name with good faith by Articles 90(1)1[Extent on Which Trademark Rights Do not Have Effect] and 99(2)[Right to Continuously Use Trademark Based on First to Use] in order to make up for the principle of registration. In this regard, they should meet the condition “Use of Trade Name in accordance with generally accepted Business Practices” for ensuring their use in spite of third parties’ trademark right. Therefore, it is very important issues to determine allowable scope of use regarding specific aspects in expression and application. ‘General Business Practices’ varies with categories of business, and therefore, it is practically impossible to establish a unified criteria which can be applied to all business areas. Nevertheless, this paper provides an opportunity for confirming standard of judgment in practice till now and for establishing clear and detailed criteria through analysis on related decisions of KIPO’s Tribunal and Courts and review of them. Consequently, in view of the legislative intent of the subject Articles, slight design of trade name and change of type, size or fonts of trade name should be protected. Further, use of trade name devoid of type of the company could be guaranteed if the general consumers still recognize it as the trade name of user. In addition, application of the above Articles should depends on use aspects of trade name even though expression aspects of the trade name are identical or maintained.