퍼블릭 도메인과 상표권적 보호에 대한 소고 - 우리나라와 상표법 및 유럽상표지침을 중심으로 -

In the case of creations attributed to the public domain whose copyright has expired or been extinguished as an internal limitation of copyright law, third parties are free to utilize them without conditions, consequently contributing to the improvement and development of culture. Also, public domains as cultural assets also serves as the basis for various forms of new creations. Specific discussion still needs to be made more explicit on how the creation of new exclusive rights over the public domain should be understood. When marketing elements are added to the public domain in commercial transactions, the possibility of granting trademark rights arises. In discussing overlapping protection as a trademark right to the public domain, Korean and European trademark law is analyzed based on two issues: trademark registration and use of a trademark. In the case of a trademark application based on the public domain, it is essential to determine whether distinctiveness exists in the mark. If the character of the mark is a descriptive mark, it is crucial to determine whether the distinguishing power of the mark has deviated from the descriptive meaning and a secondary meaning has arisen for the general consumers. Whether the distinctiveness of the secondary meaning of a mark based on the public domain has arisen would require a more positive demonstration than for an ordinary mark. However, it is not appropriate to consider the possibility of a conflict of public order as a refusal condition of registration. As a result, where a mark in or based on the public domain is distinctive, the grant of trademark rights does not create a legal conflict for copyright and trademark law purposes, nor does it create a re-monopolization of rights. If a trademark based on the public domain is registered, free use of the public domain should be guaranteed to the extent that it is not used as a trademark. Therefore, if a trademark infringement dispute arises over the mark, it should be objectively determined whether it was used as a trademark with a distinctive to other products.