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초록· 키워드
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The topic of this article is the referential use of a trademark by defendants who
repackaged or rebottled plaintiffs’ genuine products. The issue is whether such a
use constitutes trademark infringement, specially under the anti-dilution provisions.
To find the answer to the issue, Part II of this article examines ‘Prestonettes case,’
which shows clear contrast between the two theories of trademark protection;
tort-based one for consumer protection and property-based one for the protection
of trademark holder. In Part III, it is discussed whether a referential use of a
trademark can survive the anti-dilution protection in Korea. And this article
concludes the followings:
First, according to tort-based theory for the trademark protection, a referential
use is not even within the exclusivity of a trademark right. On the other hand,
according to property-based theory, a referential use comes within the exclusivity of
the right and it can be allowed only if there is no likelihood of harm to
consumers.
Second, under the U.S. protection of a famous trademark against dilution, a
referential use is not an infringement of a trademark right, not because it is a
non-commercial use, but because of a policy reason that balances the protection of
property right and free speech interests.
Third, Korea Supreme Court also sees a referential use as lying outside of the
right of a registered trademark. It held that a referential use is not a ‘trademark
use’ under the Trademark Act.
Fourth, a referential use should be interpreted as surviving the anti-dilution
provision of Korea Unfair Competition Prevention Act because it is a nontrademark
use. And the exemption is based on the ‘fair business practices,’ not on
its non-commercial nature.
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