상품의 유사와 경제적 견련성

Whether the goods is identical or similar is one of the most important issues in the Trademark Act along with the sameness or similarity of the trademark. Why the scope of application of the trademark law is not limited to the same goods but is extended to similar goods can be explained based on the purpose of the trademark law and the function of a trademark. The Trademark Act stipulates directly consumer protection as its purpose and in order to protect consumers through the source indication function, which is an essential function of trademarks, the scope of protection must be expanded to similar goods. Under the Trademark Act, the similarity of goods is decided by the common notion of general transactions considering the nature of goods and the actual transaction conditions. However, article 34 paragraph 1 item 11, 12 and 13 of the Trademark Act do not require the sameness or similarity of goods, so in interpreting these subparagraphs, instead of the similarity of goods, economic relation is required. Under U.S. Lanham Act, for trademark registration or infringement, the similarity of trademarks is decided, but similarity of goods is not required. Instead, Lanham Act requires the relatedness of goods, and the relatedness serves as a means to determine the consumer's confusion. Under Lanham Act, the competition of goods is irrelevant, and even in the case of a non-competitive goods, the likelihood of confusion among consumers is recognized if the goods is related. However, even in the U.S., where related goods rule is accepted as a general principle, there are oppositions against the rule on the grounds that it excessively expands the rights of trademark holders. Considering the tendency of companies to diversify and globalize their business scale, it may not be appropriate to strictly require identical or similar products under Korean trademark law. However, in order to maintain the predictability of trademark law application while dispelling concerns arising from the expansion of the scope of goods, it is necessary to prepare standards for the application of economic relation test in reflecting the actual circumstances of transactions related to goods.