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A Comparative Study on Requirements for Infringement of Intellectual Property and Act of Unfair Competition by Shape-copied Goods
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상품형태 모방의 지적재산권 침해와 부정경쟁행위 성립요건 비교 연구

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Type
Academic journal
Author
Journal
홍익대학교 법학연구소 홍익법학 홍익법학 제19권 제4호 KCI Accredited Journals
Published
2018.1
Pages
553 - 588 (36page)

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A Comparative Study on Requirements for Infringement of Intellectual Property and Act of Unfair Competition by Shape-copied Goods
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Abstract· Keywords

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Achievements which are resulted from heavy investments and hard endeavor in the process to create innovative goods are mainly protected by intellectual property laws such as patents and copyrights. Otherwise, the Unfair Competition Prevention and Trade Secret Protection Act(called Unfair Competition Prevention Act, hereinafter) plays a role as complementary protection. The shape of goods is a competitive element in the market and deserved to be protected by law. The shape of goods is in principle protected by the Design Protection Act, the Trademark Act, or the Copyright Act under the certain conditions that are required to be satisfied by each law. However, shape-copied goods in many cases are rarely concluded to infringements of intellectual properties in courts. Therefore, the Unfair Competition Protection Act plays an important role in the protection of the shape of goods. The copy of the shape of goods may be an act of unfair competition even though it is not an act of infringement of intellectual property right. The copy of the shape of goods can be regulated as a tort of the Civil Act for the case that is not concluded to the unfair competition. However, a balance between restriction and permission for the copy of the shape of goods is required in the enforcement of laws since all new products are influenced in some degree by already existent products. Tight restriction imposed on the copy of the shape of goods may hinder fair competition. On the other hand, unfair competition with free ride renders a decline of creative activities.
#act of unfair competition #copyright infringement #design right infringement #shape-copied goods #trademark infringement

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김정완 / 2010 / 지식재산권법 / 전남대학교출판부 google schola 조영선 / 2016 / 지적재산권법 / 박영사 google schola 구회근 / 2007 / 부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제1호 자.목에 규정된 ‘상품형태 모방’의 의미 / 법조 56(3):112~161 dbpia 김창권 / 2017 / 부정경쟁방지법 제2조 제1호 (자)목이 규정한 상품형태의 요건 / 사법 1(39):397~434 dbpia 김원오 / 2014 / 부정경쟁방지법상 신설된 일반조항의 법적성격과 그 적용의 한계 / 산업재산권 (45):253~312 google schola

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