지명표장 보호법제(지식재산연구총서 10)(양장본 Hardcover)
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우리 상표법상 지명을 포함하는 표장으로는 지명상표, 지리적 표시 단체표장 또는 지리적 표시 증명표장이 존재한다. 우리 농수산물 품질관리법은 지리적 표시제에 대해 규정하고 있다. 그 밖에 우리나라에서 지명표장 내지 지리적 표시는 부정경쟁방지 및 영업비밀보호에 관한 법률, 불공정무역행위 조사 및 산업피해구제에 관한 법률 등에 의해서도 적용받는다. 『지명표장 보호법제』는 지명을 포함하는 표장 전반을 체계적으로 해설한다.
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제1장 서 론
제1절 연구의 목적 및 필요성 ····················································· 3
제2절 지리적 표시제의 경제적 영향 ·········································· 5
제3절 지리적 표시와 상표와의 관계 ·········································· 6
제2장 국제조약 및 국내이행입법의 현황
제1절 다자간 국제조약상 지리적 표시의 보호 ··························· 9
제2절 양자간 자유무역협정상 지리적 표시의 보호 ·················· 14
Ⅰ. 한미 자유무역협정 ·························································· 14
Ⅱ. 한-EU 자유무역협정 ························································ 20
제3절 지리적 표시 관련 양자간 자유무역협정의 국내이행
입법의 필요성 및 현황 ··························································· 30
Ⅰ. 필요성 ············································································· 30
Ⅱ. 현 황 ·············································································· 31
제3장 각국의 입법례
제1절 유럽연합 ········································································· 37
Ⅰ. 의 의 ············································································· 37
Ⅱ. 개념 정의 ········································································· 37
Ⅲ. 유럽연합규칙의 적용범위 ················································ 42
Ⅳ. 법적 효과 ········································································· 44
Ⅴ. 원산지명칭 및 지리적 표시의 보호 ································· 44
Ⅵ. 지리적 표시 단체표장 및 지리적 표시 증명표장 ············· 46
Ⅶ. 사 례 ·············································································· 50
제2절 프랑스의 원산지명칭제도 ·············································· 52
제3절 미국에 있어 지리적 표시 단체표장 및 지리적 표시
증명표장의 보호 ···································································· 54
Ⅰ. 의 의 ·············································································· 54
Ⅱ. 상표법 체계를 통해 지리적 표시를 보호하는 것의 장점 ······ 56
Ⅲ. 내 용 ·············································································· 57
제4절 일본의 지명상표 제도 ···················································· 72
Ⅰ. 지명상표의 의의 ······························································ 72
Ⅱ. 지역단체상표 ··································································· 73
제4장 우리나라 농수산물품질관리법상 지리적 표시의 보호
제1절 의 의 ··········································································· 87
제2절 현 황 ············································································ 88
제3절 실체적 등록요건 ··························································· 89
Ⅰ. 주체의 요건 ····································································· 89
Ⅱ. 해당품목의 품질 특성 요건 ············································ 89
Ⅲ. 해당 품목의 품질 특성과 특정지역과의 밀접연관성 요건 ···· 90
Ⅳ. 객체 요건 ········································································· 92
Ⅴ. 지리적 표시 대상지역의 범위 요건(법률에 규정할 필요가 있음) ·················································································· 92
Ⅵ. 해당 품목 우수성의 주지 요건 및 역사성 요건(법률에 규정할 필요가 있음) ····························································· 93
Ⅶ. 자체 품질기준 요건(법률에 규정할 필요가 있음) ················ 94
제4절 거절사유 ········································································· 95
제5절 이의신청 ········································································· 96
제6절 지리적 표시권 ································································ 97
제7절 무효심판 ········································································· 98
제8절 취소심판 ········································································· 99
제9절 보호기간 ······································································· 100
제10절 소 결 ········································································ 101
제5장 우리나라 상표법상 지명표장제도(지리적 표시제도 포함)
제1절 의 의 ··········································································· 105
제2절 지명표장(지리적 표시 포함)의 실체적 등록 요건 ··········· 106
Ⅰ. 자타상품식별력이 없는 상표 ········································· 106
Ⅱ. 사용에 의한 식별력(상 제33조 제2항) ····························· 141
Ⅲ. 지리적 표시 단체표장 내지 지리적 표시 증명표장에
관한 실체적 등록요건 ···················································· 151
제3절 법률상 등록을 받을 수 없는 상표(상표의 부등록사유) ······ 152
Ⅰ. 의 의 ········································································ 152
Ⅱ. 내 용 ········································································ 152
제4절 상표권의 효력 ····························································· 160
제5절 상표법상 지리적 표시제도 ··········································· 163
Ⅰ. 도입 배경 ······································································· 163
Ⅱ. 지리적 표시 단체표장(상 제2조 제1항 제6호) ·················· 163
Ⅲ. 지리적 표시 증명표장 ···················································· 219
제6절 소 결 ··········································································· 223
제6장 우리나라 부정경쟁방지법상 지리적 표시의 보호
제1절 의 의 ··········································································· 227
제2절 원산지 허위 표시 ·························································· 227
Ⅰ. 의의 및 연혁 ·································································· 227
Ⅱ. 원산지 거짓표시행위(부정경쟁방지법 제2조 제1호 라목) ················································································ 230
Ⅲ. 이 조문을 서비스에 유추적용할 수 있는지 여부 ··········· 237
제3절 출처지(생산·제조 또는 가공된 지역) 오인유발행위
(부정경쟁방지법 제2조 제1호 마목) ········································· 241
Ⅰ. 제도의 취지 ··································································· 241
Ⅱ. 요 건 ············································································ 242
Ⅲ. 서비스에 유추적용할 수 있는지 여부 ···························· 250
제4절 자유무역협정에 의한 지리적 표시의 보호 ·················· 250
Ⅰ. 취 지 ············································································ 250
Ⅱ. 지리적 표시의 보호를 규정한 자유무역협정 ················· 251
Ⅲ. 보호의 대상 ··································································· 252
Ⅳ. 금지되는 행위 ································································ 252
Ⅴ. 금지의 예외 ··································································· 253
제7장 우리나라 불공정무역행위 조사 및 산업피해구제에 관한 법률(약칭: 불공정무역조사법)상 지리적 표시의 보호 _255
제8장 결론: 지명표장(지리적 표시 포함)의 활용방안 _261
부 록
1. 농산물의 지리적 표시 등록 및 공고 요령 ····························· 267
2. 수산물의 지리적 표시 등록 및 공고 요령 ····························· 278
● 판례 색인 ························································································· 285
● 사항 색인 ························································································· 288
제1절 연구의 목적 및 필요성 ····················································· 3
제2절 지리적 표시제의 경제적 영향 ·········································· 5
제3절 지리적 표시와 상표와의 관계 ·········································· 6
제2장 국제조약 및 국내이행입법의 현황
제1절 다자간 국제조약상 지리적 표시의 보호 ··························· 9
제2절 양자간 자유무역협정상 지리적 표시의 보호 ·················· 14
Ⅰ. 한미 자유무역협정 ·························································· 14
Ⅱ. 한-EU 자유무역협정 ························································ 20
제3절 지리적 표시 관련 양자간 자유무역협정의 국내이행
입법의 필요성 및 현황 ··························································· 30
Ⅰ. 필요성 ············································································· 30
Ⅱ. 현 황 ·············································································· 31
제3장 각국의 입법례
제1절 유럽연합 ········································································· 37
Ⅰ. 의 의 ············································································· 37
Ⅱ. 개념 정의 ········································································· 37
Ⅲ. 유럽연합규칙의 적용범위 ················································ 42
Ⅳ. 법적 효과 ········································································· 44
Ⅴ. 원산지명칭 및 지리적 표시의 보호 ································· 44
Ⅵ. 지리적 표시 단체표장 및 지리적 표시 증명표장 ············· 46
Ⅶ. 사 례 ·············································································· 50
제2절 프랑스의 원산지명칭제도 ·············································· 52
제3절 미국에 있어 지리적 표시 단체표장 및 지리적 표시
증명표장의 보호 ···································································· 54
Ⅰ. 의 의 ·············································································· 54
Ⅱ. 상표법 체계를 통해 지리적 표시를 보호하는 것의 장점 ······ 56
Ⅲ. 내 용 ·············································································· 57
제4절 일본의 지명상표 제도 ···················································· 72
Ⅰ. 지명상표의 의의 ······························································ 72
Ⅱ. 지역단체상표 ··································································· 73
제4장 우리나라 농수산물품질관리법상 지리적 표시의 보호
제1절 의 의 ··········································································· 87
제2절 현 황 ············································································ 88
제3절 실체적 등록요건 ··························································· 89
Ⅰ. 주체의 요건 ····································································· 89
Ⅱ. 해당품목의 품질 특성 요건 ············································ 89
Ⅲ. 해당 품목의 품질 특성과 특정지역과의 밀접연관성 요건 ···· 90
Ⅳ. 객체 요건 ········································································· 92
Ⅴ. 지리적 표시 대상지역의 범위 요건(법률에 규정할 필요가 있음) ·················································································· 92
Ⅵ. 해당 품목 우수성의 주지 요건 및 역사성 요건(법률에 규정할 필요가 있음) ····························································· 93
Ⅶ. 자체 품질기준 요건(법률에 규정할 필요가 있음) ················ 94
제4절 거절사유 ········································································· 95
제5절 이의신청 ········································································· 96
제6절 지리적 표시권 ································································ 97
제7절 무효심판 ········································································· 98
제8절 취소심판 ········································································· 99
제9절 보호기간 ······································································· 100
제10절 소 결 ········································································ 101
제5장 우리나라 상표법상 지명표장제도(지리적 표시제도 포함)
제1절 의 의 ··········································································· 105
제2절 지명표장(지리적 표시 포함)의 실체적 등록 요건 ··········· 106
Ⅰ. 자타상품식별력이 없는 상표 ········································· 106
Ⅱ. 사용에 의한 식별력(상 제33조 제2항) ····························· 141
Ⅲ. 지리적 표시 단체표장 내지 지리적 표시 증명표장에
관한 실체적 등록요건 ···················································· 151
제3절 법률상 등록을 받을 수 없는 상표(상표의 부등록사유) ······ 152
Ⅰ. 의 의 ········································································ 152
Ⅱ. 내 용 ········································································ 152
제4절 상표권의 효력 ····························································· 160
제5절 상표법상 지리적 표시제도 ··········································· 163
Ⅰ. 도입 배경 ······································································· 163
Ⅱ. 지리적 표시 단체표장(상 제2조 제1항 제6호) ·················· 163
Ⅲ. 지리적 표시 증명표장 ···················································· 219
제6절 소 결 ··········································································· 223
제6장 우리나라 부정경쟁방지법상 지리적 표시의 보호
제1절 의 의 ··········································································· 227
제2절 원산지 허위 표시 ·························································· 227
Ⅰ. 의의 및 연혁 ·································································· 227
Ⅱ. 원산지 거짓표시행위(부정경쟁방지법 제2조 제1호 라목) ················································································ 230
Ⅲ. 이 조문을 서비스에 유추적용할 수 있는지 여부 ··········· 237
제3절 출처지(생산·제조 또는 가공된 지역) 오인유발행위
(부정경쟁방지법 제2조 제1호 마목) ········································· 241
Ⅰ. 제도의 취지 ··································································· 241
Ⅱ. 요 건 ············································································ 242
Ⅲ. 서비스에 유추적용할 수 있는지 여부 ···························· 250
제4절 자유무역협정에 의한 지리적 표시의 보호 ·················· 250
Ⅰ. 취 지 ············································································ 250
Ⅱ. 지리적 표시의 보호를 규정한 자유무역협정 ················· 251
Ⅲ. 보호의 대상 ··································································· 252
Ⅳ. 금지되는 행위 ································································ 252
Ⅴ. 금지의 예외 ··································································· 253
제7장 우리나라 불공정무역행위 조사 및 산업피해구제에 관한 법률(약칭: 불공정무역조사법)상 지리적 표시의 보호 _255
제8장 결론: 지명표장(지리적 표시 포함)의 활용방안 _261
부 록
1. 농산물의 지리적 표시 등록 및 공고 요령 ····························· 267
2. 수산물의 지리적 표시 등록 및 공고 요령 ····························· 278
● 판례 색인 ························································································· 285
● 사항 색인 ························································································· 288
저자
저자
이규호
저자 이규호는
현 중앙대학교 법학전문대학원 교수
현 차세대콘텐츠재산학회 회장
현 국제문화재법연구회 회장
현 한국정보법학회 수석부회장
현 한국게임법학회 부회장
<주요 저술>
이규호, 『저작권법 ―사례·해설―(개정5판)』, 진원사, 2015년
이규호, 『특허법 ―사례·해설―(제3판)』, 진원사, 2015년
최정열/이규호, 『부정경쟁방지법 ―영업비밀보호법제 포함―』, 진원사, 2015년
이규호, 『지식재산권법강의』, 진원사, 2013년
James Maxeiner, Gyooho Lee, and Armin Weber, Failures of American Civil Justice in International Perspective(Aug. 2011)(Cambridge University Press)
Gyooho Lee, Legal Issues on FOSS and Other Alternative Licenses in Korea , in Axel Metzger ed, Free and Open Source Software (FOSS) and Other Alternative License Models: A Comparative Analysis (Springer, 2016) 등 다수
현 중앙대학교 법학전문대학원 교수
현 차세대콘텐츠재산학회 회장
현 국제문화재법연구회 회장
현 한국정보법학회 수석부회장
현 한국게임법학회 부회장
<주요 저술>
이규호, 『저작권법 ―사례·해설―(개정5판)』, 진원사, 2015년
이규호, 『특허법 ―사례·해설―(제3판)』, 진원사, 2015년
최정열/이규호, 『부정경쟁방지법 ―영업비밀보호법제 포함―』, 진원사, 2015년
이규호, 『지식재산권법강의』, 진원사, 2013년
James Maxeiner, Gyooho Lee, and Armin Weber, Failures of American Civil Justice in International Perspective(Aug. 2011)(Cambridge University Press)
Gyooho Lee, Legal Issues on FOSS and Other Alternative Licenses in Korea , in Axel Metzger ed, Free and Open Source Software (FOSS) and Other Alternative License Models: A Comparative Analysis (Springer, 2016) 등 다수
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