홀로그램 상표의 보호에 관한 비교법적 고찰

In recent times, new types of marks, such as sounds, scents, single colour itself and holograms have been increasingly used as trade marks in the marketplace. A hologram trademark is so-called a non-conventional trademark where a picture sequence is used to perform the trademark function of uniquely identifying the commercial origin of products or services. While the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPs Agreement) broadened the legal definition of trademark to encompass sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings, it has traditionally been difficult to protect holograms as trademarks through registration, just as a sound was not considered to be a 'trademark'. Recently, Korea amended the Trademarks Act, which provides that a trade mark is any sign, including, inter alia, hologram marks, capable of being recognized graphically. This article is dedicated to examine the rules and practices for the protection of hologram trademarks in several countries, such as the United States, UK, Singapore, Canada and Australia, and to extract some bench-marking points for the future administration of the hologram trademarks in Korea. The graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and countries have different methods for dealing with this issue one another. In Canada, hologram trademarks are generally not acceptable if they can be represented graphically or as they are regarded as more than one mark. In the European Union, through a decision from the Sieckmann(case C-273/00), the ECJ states that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. In the United States, the trademark manual for examination requires that a hologram used in varying forms does not function as a mark in the absence of evidence that consumers would perceive it as a trademark. A decision from the case of In re Upper Deck, TTAB held that a hologram used on trading cards in varying shapes, sizes, and positions did not function as a mark, because the record showed that other companies used holograms on trading cards and other products as anti-counterfeiting devices, and there was no evidence that the public would perceive applicant's hologram as an indicator of source. The applicant seeking registration of a hologram must submit a drawing of the mark that captures the dimensions thereof. Examiners are instructed to refuse registration of any holograms that show two different images on the grounds that the application is seeking protection for two separate marks. Further, the application must include detailed written description of the mark. During publication the drawing pages for these marks are published and thereafter the drawing page is incorporated into the registration certificate which is made available at the USPTO as well as the USPTO website. Business entities should be able to use holograms as a source identifier and a means to distinguish goods or services from others in the marketplace; however, at the same time, a useful hologram should be distinctive enough to be used to uniquely identify itself and its products or services to consumers. With these mentioned and more, followings are summarized: for registering a holographic device as a trademark, the hologram should be described in as much detail as possible, providing visual views of the hologram in various frames with descriptions of angle and appearance; some countries have a liberal view on the registration of simple holograms, such as in France, Australia and the United States; filing an international application through one of these countries first, once registered, would be helpful to get an international trademark; and, thorough studying and following up the rules and practices of these countries would be very helpful for a successful administration of the hologram trademarks system in Korea.

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