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A study on the acquisition of discrimination as a trademark registration requirement of a conspicuous geographical name

  • DONG-A LAW REVIEW
  • 2018, (81), pp.143-176
  • DOI : 10.31839/DALR.2018.11.81.143
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : October 24, 2018
  • Accepted : November 20, 2018
  • Published : November 30, 2018

Jung, Yoon-Kyoung 1

1고려대학교 법학연구소

Accredited

ABSTRACT

Subparagraph 4, Clause 1, Article 33 of the Trademark Law specifies “a trademark consisting solely of a conspicuous geographic name, the abbreviation thereof, or a map” as one of the causes for which no trademark is registered. This is because it is difficult for a geographic name well known among people to be recognized as a source of specific products or services. However, well-known geographical terms cannot always be used as a trademark. For example, we can often see the cases in which such are used as sources of specific products or services around us, such as “Seoul Milk”, “Seorak Mountain Water” and “Yongpyong Ski.” Nevertheless, it is not easy to judge the case in which a geogra phical name, the abbreviation thereof or a map, or a mark that includes this can be protected as a trademark. In the case of “Sariwon,” the court ruled that the name could be protected as a well-known geographical term while in the case of “Olleh Soju,” it judged that it could not be treated as a well-known geographical term. On the other hand, in the cases of “Kyungnam University” and “Seoul National University,” it ruled that the words, “Kyungnam” and “Seoul” respectively form new distinctiveness or concept, combined with the general name, “university”. In numerous cases, it is noted that whether a mark consisting solely of a conspicuous geographical name, the abbreviation thereof or a map, or a mark that includes this can be registered as a trademark is a legal issue. Recently, in June 2018, the Korean Supreme Court judged that although ‘America’ is just a geographical name, its trademark registration would be possible since it came to have new distinctiveness or concept as it was used in combination with “University.” However, on the detailed issues such as the scope of the application of this article or a standard of judgment on the formation of distinctiveness, majority opinion and separate opinion developed different legal logic, which attracts attention. This study investigated the scope of the application of Subparagraph 4, Clause 1, Article 33 of the Trademark Law, a standard of judgment of new distinctiveness or concept and the issue of application concerning other legal provisions such as Clause 2, Article 33 and Clause 1, Article 90, focusing on the case of “American University.”

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