입체상표를 통한 트레이드 드레스의 법적 보호에 대한 고찰
A Study on the Legal Protection of the Trade Dress based on the 3-Dimensional Trademark
- 주제(키워드) 트레이드 드레스
- 발행기관 아주대학교
- 지도교수 윤성승
- 발행년도 2015
- 학위수여년월 2015. 2
- 학위명 석사
- 학과 및 전공 공학대학원 지식재산공학과
- 실제URI http://www.dcollection.net/handler/ajou/000000019547
- 본문언어 한국어
- 저작권 아주대학교 논문은 저작권에 의해 보호받습니다.
초록/요약
오늘날 상품의 디자인적 요소는 상품 경쟁력의 중요한 요인으로 작용하고 있으며, 나아가 상품 및 서비스의 고유한 식별 및 출처표시로서의 기능도 하고 있다. 이와 같은 역할을 하는 디자인적 요소의 권리를 트레이드 드레스라 하고 있다. 2011년 삼성전자를 상대로 한 애플사의 디자인특허와 트레이드 드레스에 대한 소송을 통해 국내에 다소 생소했던 트레이드 드레스라는 용어가 널리 알려지게 되었고, 다른 글로벌 기업들 역시 트레이드 드레스 보호에 관심을 가지게 되었다. 그러나 국내에는 아직도 그 개념과 보호 등이 불명확하여 본 논문에서는 입체상표의 법적 보호 방법을 바탕으로 우리나라에서의 법률상 보호제도 및 그 범위와 한계를 알아봄으로써 앞으로 추구해야 할 방향을 살펴보고 있다. 최근 상표법 개정을 통해 트레이드 드레스를 상표의 범주에서 취급하는 것에 제한 없이 등록을 전제로 상표법의 보호를 받을 수 있게 되었고, 미등록의 경우 일정한 요건 하에 부정경쟁방지법을 통해 보호되고 있다. 그러나 우리나라 상표법 제6조 제1항 제3호와 관련된 식별력 관련 규정과 제7조 제1항 제13호에서 규정하고 있는 상표의 범주 내에서의 기능성원리에 대한 문제는 보완이 필요하며, 법률의 이원적 규율로 인한 저촉 문제 등으로 인하여 상표법과 부정경쟁방지법을 보완·통합하는 것도 고려할 필요가 있다고 생각된다. 국내에서의 트레이드 드레스 보호는 가능성과 한계가 공존하고 있고 미국과 비교하여 분쟁이나 판례의 축적이 부족하여 체계적인 법리 확립이 필요한 상황이므로 우리나라에서의 트레이드 드레스 보호 문제를 근본적으로 해결하기 위해서는 지속적인 연구가 필요하다.
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목 차 (Contents)
국 문 요 약 ································································································· ⅰ
목 차 ··············································································································· ⅱ
표 목 차 ········································································································ ⅵ
그 림 목 차 ································································································· ⅶ
제 1 장 서 론 ······························································································ 1
1.1. 연구의 목적 ························································································ 1
1.2. 연구의 방법 ························································································ 1
제 2 장 트레이드 드레스와 입체상표 ············································· 4
2.1. 트레이드 드레스의 연혁 및 개념 ·················································· 4
2.1.1. 연혁 ································································································· 4
2.1.2. 트레이드 드레스의 개념 ································································ 5
2.2. 트레이드 드레스와 인접 개념 ························································ 8
2.2.1. 트레이드 드레스와 상표 ································································ 8
2.2.2. 트레이드 드레스와 디자인 ·························································· 10
2.2.3. 디자인과 상표 ··············································································· 11
2.3. 입체상표의 개념 ·············································································· 12
제 3 장 입체상표와 트레이드 드레스의 보호 법리 ·············· 14
3.1. 상표법상의 관련 규정 ···································································· 14
3.1.1. 상표법 제6조 제1항 제3호 ························································· 14
3.1.2. 상표법 제7조 제1항 제13호 ······················································· 14
3.2. 부정경쟁방지법상의 관련 규정 및 한계 ···································· 15
3.2.1. 부정경쟁방지법 제2조 제1호 (가)목 ·········································· 16
3.2.2. 부정경쟁방지법 제2조 제1호 (자)목 ·········································· 16
3.2.3. 부정경쟁방지법상의 한계 ···························································· 18
3.3. 기타 지식재산권법에 의한 보호 검토 ········································ 18
3.3.1. 특허법에 의한 보호의 한계 ························································· 18
3.3.2. 저작권법에 의한 보호의 한계 ····················································· 19
제 4 장 입체상표와 트레이드 드레스의 보호요건 ················· 20
4.1. 식별력의 존재 ·················································································· 20
4.1.1. 트레이드 드레스에서의 식별력 ··················································· 21
4.1.2. 입체상표에서의 식별력 ································································ 23
4.1.3. 소결 ······························································································· 25
4.2. 기능성 ································································································ 26
4.2.1. 기능성의 의의 ··············································································· 26
4.2.2. 기능성의 종류와 목적 ·································································· 27
4.2.3. 기능성 판단 기준 ········································································· 29
4.2.4. 우리나라에서의 기능성 원리 ······················································· 31
4.2.5. 소결 ······························································································· 32
4.3. 혼동 가능성 및 희석화 ·································································· 32
4.3.1. 혼동 가능성의 판단 기준 ···························································· 33
4.3.2. 희석화 ··························································································· 35
제 5 장 국내 트레이드 드레스 유사 사례 ································· 37
5.1. 바나나우유 용기사건 ······································································ 37
5.1.1. 사실관계 ························································································ 37
5.1.2. 쟁점 ······························································································· 37
5.1.3. 당사자의 주장 ··············································································· 38
5.1.4. 판결의 요지 ·················································································· 38
5.1.5. 검토 ······························································································· 40
5.2. 발렌타인 용기사건 ·········································································· 40
5.2.1. 사실관계 ························································································ 40
5.2.2. 쟁점 ······························································································· 41
5.2.3. 당사자의 주장 ··············································································· 41
5.2.4. 판결의 요지 ·················································································· 42
5.2.5. 검토 ······························································································· 43
5.3. 노래하는 거북이 사건 ···································································· 44
5.3.1. 사실관계 ························································································ 44
5.3.2. 쟁점 ······························································································· 44
5.3.3. 당사자의 주장 ··············································································· 45
5.3.4. 판결의 요지 ·················································································· 45
5.3.5. 검토 ······························································································· 47
5.4. 애플사 대 삼성전자 사건 ······························································ 47
5.4.1. 사건의 개요 ·················································································· 47
5.4.2. 판결의 요지 ·················································································· 48
5.4.3. 검토 ······························································································· 51
제 6 장 결론 ······························································································ 53
참 고 문 헌 ································································································ 56
ABSTRACT ································································································ 60
