상표패러디의 법적취급에 관한 비교법적 연구

Abstract

Having examined foreign cases of trademark parody, the main issues in the United States turned out to be generally the matter of whether to admit dilution or not and the freedom of expression issue, whereas in Germany and France, there are diverse views including the problem of whether to admit tort liability as well as the trademark infringement and the freedom of expression issue, etc. This can be seen as the result of different law and culture in each country. In Korea, when a legal dispute related to trademark parody arises, there seems to be no recourse than to focus on the issue of whether the case can be interpreted as dilution under unfair competition law or the problem of admitting tort liability, due to the narrow scope of application of the current trademark law. In this case, to decide on the issue of dilution, the case theory of the United States is expected to be a good reference. Furthermore, it is advisable to consider parody which is put forth as an example of a kind of fair use under the U.S. Trademark Dilution Revision Act of 2006(§1125(c)(3)(A)). Additionally, the judgment on possible confusion within trademark law due to trademark parody would not pose a big difficulty but the cases of Germany and the U.S. would be a useful reference. In Germany, the act of parodying a famous trademark of another to simply allure the consumer’s interest is dealt as a problem of using reputation by applying the trademark law(§14(3)). It is regrettable that in Korea, there is no provision regarding the matter, thus, the issue is left to the decision of whether there is tort liability. However, since there hardly exists any cases of tort related to trademark use in Korea, the actual judgment will not be facilitated. Finally, regarding the freedom of expression and the limitation of admitting trademark parody, the classification of different forms of cases in the U.S., Germany, France, etc will be able to help establish a criterion unique to Korea.