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상표 희석화의 법리에 관한 연구

상표 희석화의 법리에 관한 연구
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대학원 법학과
이화여자대학교 대학원
Trademarks indicate the source of goods. Today they function not only guaranteeing the quality of goods but advertising trademarked goods which has accumulated. Goodwill for a long time especially the trademark gets the infinite value as well as commercial magnetism in itself. Therefore the view that trademark should be protected like property right is more and more widely accepted. The trademark dilution theory has developed through long discussion and many cases in the U.S. The theory originated from the notion that the consumers' recognition of the trademark value has not to be whittled away or tarnished, even if there is no possible confusion of the source of goods. Currently many countries and international organizations have regulations protecting famous trademarks not to be diluted. In addition, the dilution theory has been utilized as a reasonable solution of the conflict between the established trademark and the domain name which has been emerging as new goods identification mark with the develo pment of the internet. In February 2001, Korea introduced the dilution theory through revision of the Unfair Competition Prevention and Business Secret Protection Act. This thesis analyzes this new legislation and tries to suggest the proper extent of protection, execution methods, and improvement of the relevant provisions to be suitable for Korea situation. As stated above, the discussion on the prevention of trademark dilution is connected to the development of trademark functions and economic value of trademarks. As trademark functions have become diverse and the main purpose of trademark protection has been changing, the dilution theory has become embossed. This thesis examines the general theory trademarks for a background study and then looks into the concept and type of trademark dilution. Before examining the dilution theory which is a relatively new theory about trademark infringement, the traditional confusion theory has to be overviewed. Which method was used in the past to solve the problem of the trademark blurring and tarnishment? What's the limit of the past method of settlement? Since these matters has to be explored to understand necessity of dilution theory, the confusion theory is discussed in Chapter 3. On the basis of above discussion, in Chapter 4 deals with every detailed aspect of the dilution theory. First I made a general survey of the background of this theory in the U.S., the theory's homeland. The trademark issue is also the cause of international trade pressure. So it is necessary to investigate the induction of dilution theory in international agreements as well as in European Community and Japan which have been trading actively with Korea. Even though the trademark owner asserts the trademark infringement by dilution, it's not easy to recognize the phenomenon of tradem ark dilution. Some precedents of the U.S. applied the yardstick for judgment of the likelihood of confusion to the trademark infringement by dilution. The standard of judgment and the proving means are studied in depth. Next the conflict between trademarks and domain names is explored in the context of trademark dilution. The criticism against the dilution theory is thoroughly considered in Chapter 4, part 5 to avoid a blind adoption of the theory. As mentioned above, the main purpose of this thesis is to find out how to properly adapt the dilution theory to the Korea legal system. Chapter 5 covers the provisions protecting famous marks in the Korea Trademark Act, and the newly added provisions for the prevention of trademark dilution in the Unfair Competition Prevention and Business Secret Protection Act. Finally this thesis proposes the appropriate implementing methods and the direction for the legislative improvement.
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