표현의 자유와 상표권 보호의 조화 — 미국 연방대법원의 Jack Daniel’s 케이스를 중심으로 —

Main functions of trademark are to indicate the source of goods or services or to distinguish them from other goods or services. Trade- mark rights is a kind of content regulation, and therefore, trademark protection and freedom of expression are in conflict with each other. Hence the question arises how to strike a balance between those two conflicting rights. There are many situations where those two rights conflict each other like the use of a trademark for a specific product or service as the subject of a work of art, the use of a trademark to parody or satirize a specific product or service, or the use of a trademarked product in a metaverse environment. In particular, when a trademark used in artistic works or parody functions as a source of goods or services, the protection of trademark rights and freedom of expression come into conflict. In this case, it is necessary to strike a delicate balance between those two rights. In Korea, there is relatively little accumulated case law on the issue of conflicting freedom of expression and trademark rights, and it has not been discussed much in academia. Although trademark rights and freedom of expression have been discussed in the metaverse in recent years, a full-scale discussion on this issue is virtually non-existent. The U.S. Supreme Court's recent decision in the case of Jack Daniel's Properties, Inc. v. VIP Products LLC. provides an important standard for balancing freedom of expression and trademark rights. Although this is a U.S. case, the conclusion and holdings are quite persuasive. Since trademark laws around the world are based on similar principles, the U.S. decision has a significant global impact, the issue of conflicting intellectual property rights, especially trademark rights, and freedom of expression is a very important issue in Korea as well as the United States, the Supreme Court decision will have much impact on Korea. The purpose of this article is to examine the Jack Daniel's decision in detail in relation to the conflict and accommodation of trademark rights and freedom of expression, and to make suggestions on how to reconcile the two in Korea in the future.