상표등록요건으로서 상표 사용의사와 그 확인시스템의 타당성 검토

The trademark law of our country is based on the registration system. In light of the legal principles of the registration system, requiring the intention to use a trademark as a registration requirement and actively verifying and intervening at the examination stage may hinder the function of fostering sound business operations and undermine the very foundation of the registration system. Accordingly, the provisions of Article 3, which require the intention to use a trademark as a registration requirement, were erroneously retained during the transition from the first-use system to the registration-based system and possess an inherent nature that is difficult to harmonize with the registration-based system. As a result, these provisions have been operated as discretionary provisions for a long time. The introduction of the trademark use intent verification system and the active implementation of Article 3 during the examination stage were transitional measures implemented in 2011 as a solution to the issues arising from the registration-based system that had become social problems. However, it remains difficult to reconcile this system with the registration-based legal framework in theory, and there are no similar legislative examples in the trademark laws of major foreign countries that adopt the registration-based system. Confirming the applicant’s inner intentions or future plans during the trademark application and examination stages can lead to significant adverse effects and its effectiveness is difficult to expect. This is also why the system for confirming the intent to use a trademark, which is operated through revisions to trademark examination standards, has not received proper support from the courts. Furthermore, the requirement for a vested interest in filing a claim for cancellation of a trademark registration due to non-use has been removed, ensuring that the opportunity to address the abuses of unused trademark rights through such proceedings is sufficiently guaranteed. Additionally, the “designated goods fee surcharge system,” which has been reinstated and has proven to be effective with minimal side effects, addresses the issue of excessive designation of designated goods, further reducing the need to verify the intent to use. Therefore, it is appropriate to either abolish the main provision of Article 3 of the Trademark Act or, at the very least, exclude it from the grounds for refusal of trademark registration under Article 54 and the grounds for invalidity of trademark registration under Article 117, thereby maintaining it as a declaratory provision as before. The trademark use intent confirmation system is also a system that cannot coexist with Article 3 if it is deleted from the grounds for refusal, and its inherent flaws and practical issues have been extensively revealed, so it should also be abolished.