상표의 유사 판단에 대한 비판적 검토 - 혼동 기준의 문제점과 유사 기준의 타당성을 중심으로 -

The Trademark Act stipulates that trademark protection covers trademarks identical or similar to registered trademarks. The similarity and confusion of trademarks differ both literally and semantically. Confusion regarding the source of goods is regulated by the Unfair Competition Prevention Act, not the Trademark Act. However, both theoretically and practically, the similarity on the Trademark Act is determined by the likelihood of confusion. In other words, if there is a possibility of confusion regarding the source of goods based on specific transaction circumstances, the trademark is deemed similar, and if there is no such possibility, the trademark is deemed dissimilar. This is primarily based on the fact that trademarks essentially function as indications of the source of goods. However, the Trademark Act explicitly distinguishes similarity from confusion, and similarity and confusion are distinct concepts. Intellectual property laws, including the Trademark Act, are strongly legislative policy-based, and therefore the scope of protection must be determined in accordance with legal provisions. The confusion criterion contradicts the text of the Trademark Act, undermines the inherent legislative intent of the Act, and offers little practical benefit. In fact, the confusion criterion makes the criteria for determining similarity highly uncertain and, in practice, makes determining similarity more difficult. To address thisissue,legislationthatexplicitlystipulatesaconfusioncriterionintheTrademark Act could be considered. However, the current Trademark Act guarantees objectivity in judgment of the scope of trademarks and is consistent with rights-granting legislation. Therefore, rather than determining similarity based on the confusion criterion, it would be more appropriate to determine the scope of protection based on whether the marks are truly similar, based on objective criteria. Given the current situation where the confusion criterion is firmly established as precedent, if such a change in legal doctrine is difficult, the confusion criterion should initially serve as a reference for the similarity criterion and apply the judgment criteria accordingly. Subsequently, legal principles should be established that determine the scope of trademark protection solely based on the similarity criterion, excluding confusion. While this view may conflict with existing case law and academic doctrine, it is believed that a critical examination of the legal doctrine of trademark similarity can provide a new perspective and serve as a foundation for broader research and review.