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Reconstruction of Registration in Trademark Protection

  • DONG-A LAW REVIEW
  • 2012, (56), pp.451-486
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Yook, Soyoung 1

1충남대학교

Accredited

ABSTRACT

Registration plays a different role between a first-to-use system and first-to-file one in trademark protection. Korean Trademark Law has maintained the first-to-file system since its first adoption and many countries have chosen the first-to-file system as theirs to protect a trademark. However, no country preserves strictly a first-to-file system and adds first-to-use factors to his system and vice versa. WTO-TRIPs may be a motive to harmonize a trademark protection system in such a way. WTO bases trademark protection on registration and adds use-based factors to trademark protection. Since joining TRIPs, use-based factors increase in Korean trademark protection system. One of examples is famous mark protection. Reinforcement of famous mark protection attenuates the role of registration. Moreover, prior use right provides right of use regardless of later registration and limits the effect of the registration. Consolidating use-based factors in trademark protection, the structure of trademark protection shakes from the bottom in Korea. In my opinion, the current registration-based system has lots of merits and needs to be maintained. Therefore, to maintain the current system, prior prudent consideration may be required to introduce use-based factors into Korea.

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