부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제1호 (자)목에서 규정하는‘상품형태 모방행위’의 규제

Abstract

The Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) aims at constructing and maintaining the order for fair competition. In 2004, an amendment to the Unfair Competition Prevention Act introduced a provision to regulate the imitation of the products configurations. Therefore when a certain configuration of products which was developed and merchandised by other person has come to be on the market, then without regard to the matter if the configuration is widely recognized to indicate other person's product, or registrable as a design, it is in principle prohibited for a third person to make use of the same configuration or a substantial same one for products of the same kind. In the last 16 years, many cases have been tried in court on the regulation of imitation of the product configurations. This paper focuses on the cases that have been dealt with in our courts over the issues raised around the regulation of imitation since the introduction of this article in 2004. In cases where design infringement is a problem, plaintiff lawyers often insist that the primary claim is the design infringement and the preliminary claim is the imitation of the products configurations. In this regard, it would be very beneficial, both practically and academically, to review the court cases judged on whether they correspond to the imitation of the products configurations.