중국의 악의적 상표권자 청구권 제한에 관한 연구 - 플랫폼 환경에서의 실효적 방안 모색 -

Abstract

Recently, there has been an increasing number of acts to obtain financial benefits by claiming damages by using registered trademark rights preoccupy in bad faith in China. Regarding the principle of trademark protection, China is adopting the principle of registration. In other words, anyone can apply for a trademark with the Trademark Office of China National Intellectual Property Administration(CNIPA). It can be protected by the China Trademark Law when passed an examination. In the non-substantive examination process, the trademark office does not examine whether the trademark applied for is a trademark used by others first. Only the application for trademark registration is reviewed. Therefore, a trademark applicant can preferentially register a trademark that is being used by others without registration. Also, a holder of trademark right who registered a trademark in bad faith in advance may claim that the right has been infringed. In the process of resolving intellectual property disputes and conflicts between the United States and China, the Chinese authorities strengthened the rights of trademark holders. Administrative measures to stop infringing trademark rights continued. Through this series of measures, a social atmosphere was created that it is natural for trademark holders to take remedies for infringement. These things caused the incident which is preoccupying trademark in bad faith. In addition, in the third revision of the China Trademark Law implemented in 2013, legislation to strengthen civil remedies for trademark holders was in progress, such as adopting a punitive damage award. Accordingly, applications for preoccupying trademark in bad faith aimed at financial gain are accelerating. Because of this situation, the Chinese legislative body carried out the fourth revision to ban such actions at the source through legal regulations and to strengthen punishment for them. Through this revision, a legal basis has been prepared to prevent the abuse of civil remedies in advance. In addition, there are cases that restrict the claims of trademark holders by applying the principle of good faith. And above all, the platform business is revitalized due to digital transformation, as a result, various forms of trademark infringement appear. For this reason, in addition to the China Trademark Law, measures to restrict using the China Anti-Unfair Competition Law and the China E-commerce Law are being actively used. Korea is also faced the task of effective trademark protection in the era of the 4th industrial revolution. Therefore, in this article, provisions and major precedents related to the limitation of trademark holders' claims were analyzed for implications to legislate related provisions in Korea.