Let's continue the discussion on “Introduction to Intellectual Property and Understanding Intellectual Property”. Among them, today, as a special lecture, we will learn about “Trade dress protection and trademark infringement”.
1. What is trade dress?
Trade dress refers to the overall image or visual characteristics of a service or product to consumers as the totality of the packaging and provided elements of a product or service. In addition, it is a concept that includes both visual and non-visual elements such as trademarks, product design, store interiors, product packaging, product display methods and smells and sounds in the store, as well as sales methods that provide services or products. In short, it is all the factors provided to consumers for marketing for a product or service.
2. Trade dress protection
In developed countries such as the United States, trade dress is already protected through trademark rights. And even if it is not registered in trademark rights, there are practically many cases in which certain standards are applied to protect trade dress. However, the concept of trade dress far exceeds the concept of trademark and design in the Trademark Act or Design Protection Act, and the subject of protection is vaguely defined. However, in the trade dress, visual and non-visual elements such as figures, labels, characters, three-dimensional shapes, sounds, and smells can be protected through trademark registration. It can also be protected by applying the Unfair Competition Prevention Act.
3. Trademark infringement issues
1) Internet keyword advertising as infringement of trademark rights: The core of the dispute between trademark rights and Internet keyword advertising is whether or not excessive keyword use can be recognized as an act of trademark use. Internet keyword advertisements are problematic because they do not fall into the category of using a trademark that is similar or identical to a registered trademark. Already, Google and various portal sites are selling search keywords to advertisers to provide services so that advertisers are connected when searching for specific keywords, thereby gaining economic benefits. It is clear that such keyword trading has the potential to damage the reputation, publicity, and quality of the product to a third party.
The European Court of Justice regards this issue as an infringement of trademark rights, but North America (USA and Canada) does not regard keyword advertising as an infringement of trademark rights. In other words, the portal site is not held responsible. It remains to be seen what kind of judgment the Korean court will make in a similar case in the future.
2) Internet open market and trademark infringement: With the development of society, the sale of counterfeit products through the Internet has become a problem, and controversy has arisen over the responsibility of the operator of the open market, which is the route for selling counterfeit products. In the case of Korea, the open market operator is not responsible because it is not the possession and direct counterfeiting of products. In this case, the open market operator should leave the judgment of whether or not he/she is responsible for aiding illegal acts under the Civil Code to the court. In one case, it was concluded as follows:
“The open market operator has no contractual, legal or culinary duty to prevent counterfeit product sales that occurs in the open market. However, if counterfeiting is evident, the open market operator is obliged to take measures to stop the distribution of counterfeit products to the extent technically and economically feasible.”
The above means that, unless counterfeit product sales are evident, there was no responsibility to the open market owner. In order to prevent trademark infringement and confusion in the open market, it seems necessary to make legislative efforts such as the enactment of new trademark laws or special laws.
Today, as a special lecture, we learned about “Trade dress protection and trademark infringement”. Next, we will discuss the “application and examination process for designs”.
*I am a student learning IP, not an IP expert. Translation is also Google translator and my short English skills. I hope it will be helpful for those who do not have the relevant knowledge or who want to learn about IP.
*The above is what I learned from a book compiled by the Korean Intellectual Property Office and Korea Invention Promotion Association (published by Pakmungak) entitled “Introduction to Intellectual Property, Understanding Intellectual Property”.
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