1 지식재산권 ? 1
제1장 지식재산권의 정의와 분류 ······································································ 3
Ⅰ. 지식재산권 ······················································································································ 3
1. 지식재산권의 의의와 특징 / 3
2. 지식재산권 개념 이해 / 5
3. 지식재산권의 현재 / 6
4. 우리나라의 지식재산권제도와 관련 조약 / 10
Ⅱ. 지식재산권의 분류 ········································································································ 11
1. 산업 vs. 문화 / 11
2. 창작 vs. 식별표지 / 13
Ⅲ. 지식재산권과 관련법 ···································································································· 14
1. 헌법과 지식재산기본법 / 14
2. 민사법과 지식재산권의 관계 / 15
3. 기타 법률과 지식재산권의 관계 / 16
제2장 상표·디자인과 부정경쟁행위 ······························································ 20
Ⅰ. 상표와 지식재산권 ········································································································ 20
1. 상표등록(상표권)을 통한 보호 / 21
2. 부정경쟁행위로부터 보호 / 21
Ⅱ. 디자인과 지식재산권 ···································································································· 28
1. 저작권법상 응용미술저작물 / 28
2. 디자인등록(디자인권)을 통한 보호 / 29
3. 부정경쟁행위로부터 보호 / 29
4. 기타 법률에 의한 보호 / 41
Ⅲ. 그 밖의 부정경쟁행위 ·································································································· 42
1. 원산지·생산지 또는 제품의 질·양 등의 오인유발행위 / 42
2. 아이디어 탈취행위(부정경쟁방지법 제2조 제1호 차목) / 44
3. 데이터 부정사용행위(부정경쟁방지법 제2조 제1호 카목) / 45
4. 유명인의 초상·성명 등 부정사용행위(부정경쟁방지법 제2조 제1호 타목) / 45
차 례 7
2 저작권법 ? 49
제1장 저작물과 저작권 개론 ··········································································· 51
Ⅰ. 저작물 ··························································································································· 51
1. 저작물의 성립요건 / 52 2. 저작물의 예시 / 59
Ⅱ. 저작물과 디자인 ··········································································································· 61
1. 응용미술저작물 / 61 2. 건축저작물 / 65
3. 사진저작물 / 71 4. 영상저작물 / 76
5. 도형저작물 / 78 6. 2차적저작물 / 79
Ⅲ. 저작권의 내용 ·············································································································· 80
1. 저작권의 의의 / 80 2. 저작권의 발생·효력 / 81
3. 저작물의 이용허락 / 82 4. 저작권의 침해와 구제 / 83
제2장 저작권과 그 제한 ················································································· 94
Ⅰ. 저작자와 저작인격권 ···································································································· 94
1. 저작자 / 94 2. 저작인격권 / 98
Ⅱ. 저작재산권 ·················································································································· 103
1. 복제권 / 105 2. 공연권 / 105
3. 공중송신권 / 106 4. 전시권 / 107
5. 배포권과 권리소진 / 107 6. 대여권 / 108
7. 2차적저작물작성권 / 109
Ⅲ. 저작재산권의 제한 ····································································································· 110
1. 개요 / 110
2. 공표된 저작물의 인용 / 111
3. 사적이용을 위한 복제 / 113
4. 미술저작물등의 전시 또는 복제 / 114
5. 보충적 일반규정의 도입: 공정이용 / 115
6. 그 밖의 저작재산권의 제한 사유 / 116
8 차 례
제3장 저작권과 산업재산권의 비교 ······························································ 124
Ⅰ. 저작권과 산업재산권 ·································································································· 124
1. 산업재산권의 의의 / 124 2. 산업재산권의 특징 / 125
3. 양 권리의 대비 / 125
Ⅱ. 서체, 글자체, 폰트 ····································································································· 129
1. 서체의 저작물성 / 129
2. 디지털 폰트(digital font)의 저작물성 / 131
3. 글자체(typeface)의 보호 / 132
Ⅲ. 캐릭터의 보호 ············································································································ 134
1. 캐릭터와 저작권법 / 135
2. 캐릭터와 디자인보호법 / 136
3. 캐릭터와 상표법 및 부정경쟁방지법 / 137
3 디자인보호법 & 특허법 ? 141
제1장 디자인권과 디자인 ·············································································· 143
Ⅰ. 디자인권 ····················································································································· 143
1. 산업재산권으로서의 디자인권 / 143
2. 디자인권의 발생·효력·제한 / 145
3. 실시권 / 152
4. 디자인권의 침해와 구제 / 155
Ⅱ. 공업상 이용할 수 있는 디자인 ·················································································· 160
1. 디자인보호법상 디자인의 정의 / 161
2. 디자인보호법상 디자인의 성립요건 / 162
3. 디자인 성립요건 흠결의 취급 / 172
4. 공업상 이용가능성 / 173
제2장 디자인등록요건 ··················································································· 180
Ⅰ. 디자인등록요건의 개요 ······························································································· 180
차 례 9
Ⅱ. 주체적 등록요건과 디자인권의 귀속 ·········································································· 183
1. 권리능력 / 183 2. 권리적격: 디자인등록을 받을 수 있는 자 / 183
3. 공동창작 / 185 4. 선출원주의 / 187
5. 직무디자인창작 / 188
Ⅲ. 신규성과 창작비용이성 ······························································································· 190
1. 신규성 / 190 2. 창작비용이성 / 192
3. 신규성과 창작비용이성의 흠결 시 취급 및 양자의 비교 / 204
Ⅳ. 기타 등록요건 ············································································································ 205
1. 확대된 선출원주의 / 205
2. 디자인등록을 받을 수 없는 디자인 / 208
제3장 디자인등록출원과 특유제도 ································································ 217
Ⅰ. 디자인등록출원절차 ···································································································· 217
1. 디자인등록출원 / 217
2. 심사 / 226
3. 등록여부결정 및 디자인권 설정등록 / 228
4. 심판과 소송 / 229
Ⅱ. 출원서류 및 도면작성법 ····························································································· 231
1. 디자인등록출원서류 / 231 2. 물품의 명칭 / 232
3. 첨부도면 / 233 4. 도면 흠결 시 법적 취급 / 241
Ⅲ. 디자인보호법상 특유제도 ··························································································· 241
1. 부분디자인제도 / 241 2. 디자인일부심사등록제도 / 246
3. 관련디자인제도 / 254 4. 복수디자인등록출원제도 / 259
5. 한 벌의 물품의 디자인제도 / 262 6. 비밀디자인제도 / 265
제4장 디자인의 유사판단 ·············································································· 272
Ⅰ. 디자인의 유사의 개념 ································································································ 272
1. 디자인보호법상 디자인의 유사 / 273 2. 유사판단의 어려움 / 273
3. 유사 여부의 확인 방법 / 279
Ⅱ. 디자인의 유사판단의 방법 ························································································· 280
1. 유사 여부에 관한 판단기준 / 280 2. 구체적인 유사 여부 판단방법 / 281
3. 유사판단 시 고려할 사항 / 286
10 차 례
제5장 디자인의 해외에서의 보호 ································································· 295
Ⅰ. 해외 국가별 디자인의 권리화 ···················································································· 295
1. 속지주의와 조약우선권 / 295
2. 조약우선권 주장의 효과 / 296
3. 우선권주장 가능 기간과 국가별 디자인등록출원의 한계 / 296
Ⅱ. 헤이그협정에 의한 디자인의 국제출원 ······································································ 297
1. 헤이그 시스템의 의의 / 297
2. 헤이그 시스템을 이용한 국제출원제도의 장단점 / 298
3. 헤이그 시스템을 이용한 디자인의 국제출원 / 299
제6장 아이디어(idea)의 보호 ···································································· 305
Ⅰ. 특 허 권 ····················································································································· 306
1. 산업재산권으로서 특허권 / 306
2. 특허권의 발생과 존속기간 / 307
3. 특허권의 효력과 제한 / 310
4. 특허권의 침해에 대한 구제 / 314
Ⅱ. 발명(發明)의 개념, 그 성립성 ···················································································· 314
1. 사상(思想)·아이디어(idea)의 창작 / 315
2. 기술적인 것(技術的·technical) / 316
3. 자연법칙을 이용 / 317
4. 발명의 완성 / 319
Ⅲ. 특허요건 ····················································································································· 320
1. 주체적 요건과 특허권의 귀속 / 320 2. 객체적 요건 / 321
3. 절차적 요건 / 325
Ⅳ. 특허출원절차 ·············································································································· 326
1. 특허출원 및 출원공개 / 327 2. 심사 / 330
3. 특허여부결정 및 특허권 설정등록 / 331
Ⅴ. 실용신안제도 ·············································································································· 332
1. 실용신안권 / 333 2. 실용신안제도의 목적 및 현황 / 333
3. 실용신안법과 특허법의 공통점 / 334 4. 실용신안법과 특허법의 차이점 / 334
5. 변경출원제도 / 338
차 례 11
4 상 표 법 ? 341
제1장 브랜드(상표)와 상표권 ······································································· 343
Ⅰ. 상표법상 상표 ············································································································ 344
1. 상표법상 상표의 개념 / 344
2. 단체표장·업무표장·증명표장 / 357
3. 상표의 기능 / 360
Ⅱ. 상표권 제도 ················································································································ 364
1. 상표권 제도의 목적 / 364 2. 상표권의 내용 / 366
제2장 상표등록요건 및 상표 자체에 관한 부등록사유 ································ 372
Ⅰ. 상표등록요건과 식별력 ······························································································· 372
1. 상표등록을 받을 수 있는 자 / 373 2. 광의의 상표등록요건 / 377
3. 자타상품식별력 / 377 4. 사용에 의한 식별력 취득 / 413
Ⅱ. 상표부등록사유 개요 ·································································································· 420
Ⅲ. 상표 자체에 관한 부등록사유의 구체적인 내용 ························································ 423
1. 대한민국, 외국, 국제기관 등의 표지 및 감독용 인장 등과 동일·유사한 상표 / 423
2. 국가, 공공단체 등과의 거짓 관계 표시·비방·모욕 우려 상표 / 427
3. 국가, 공공단체 등의 저명한 표장과 동일·유사한 상표 / 429
4. 공서양속에 반하는 상표 / 432
5. 박람회의 상패·상장 등과 동일·유사한 표장이 있는 상표 / 435
6. 저명한 타인의 성명·명칭 등 또는 이들의 약칭을 포함하는 상표 / 436
7. 품질 오인 또는 수요자 기만 염려 상표 / 442
8. 상품의 기능을 확보하는 데 불가결한 상표 / 445
9. 포도주 등 산지에 관한 지리적 표시를 포함하는 상표 / 449
10. 식물신품종 보호법에 따라 등록된 품종명칭과 동일·유사한 상표 / 450
11. 농수산물 품질관리법에 따라 등록된 지리적 표시와 동일·유사한 상표 / 450
12. 자유무역협정에 따라 보호되는 지리적 표시와 관련된 상표 / 451
12 차 례
제3장 선행상표와의 관계에 관한 부등록사유 ·············································· 455
Ⅰ. 선출원상표와의 관계 ·································································································· 456
1. 선출원주의와 선사용주의 / 456
2. 선·후출원판단의 기준 / 457
Ⅱ. 선등록상표와의 관계 ·································································································· 458
1. 선출원에 의한 타인의 등록상표 / 458
2. 선출원에 의한 타인의 등록된 지리적 표시 단체표장 / 461
Ⅲ. 선사용상표와의 관계 ·································································································· 462
1. 주지상표(주지된 지리적 표시)와의 관계 / 462
2. 저명상표와의 관계 / 466
3. 부정한 목적과 선사용상표(선사용 지리적 표시) / 472
4. 수요자를 기만할 염려가 있는 상표 / 478
Ⅳ. 신의성실의 원칙에 반하는 관계 ················································································· 484
1. 타인의 사용 또는 사용 준비 중인 상표임을 알면서 출원한 상표 / 484
2. 조약당사국에 등록된 상표와 동일·유사한 상표 / 488
제4장 상표등록출원 ······················································································ 491
Ⅰ. 상표등록출원절차 ······································································································· 491
1. 상표등록출원 / 492 2. 출원의 보정 / 495
3. 출원의 분할 / 501 4. 출원의 변경 / 503
Ⅱ. 심사 및 이의신청제도 ································································································ 504
1. 거절결정 / 505 2. 출원공고제도 / 506
3. 이의신청제도 / 507
Ⅲ. 등록결정 및 상표권 설정등록 ···················································································· 509
1. 심사관의 상표등록결정 / 509 2. 설정등록료 납부와 상표권 발생 / 510
3. 등록공고 및 등록증 교부 / 510
차 례 13
제5장 상표의 유사판단 ················································································· 512
Ⅰ. 상품의 동일?유사 ······································································································ 513
1. 상품의 유사에 대한 판단 / 513
2. 상품과 서비스 간의 유사성(동종성) / 517
Ⅱ. 상표(표장)의 동일?유사 ···························································································· 519
1. 상표 유사판단의 3요소 / 520 2. 판단기준 / 520
3. 관찰방법 / 521
4. 유사판단에 관한 사례 / 527
제6장 디자인의 상표적 기능 ········································································ 539
Ⅰ. 디자인과 출처의 혼동 ································································································ 539
Ⅱ. 디자인과 상표법 ········································································································· 541
1. 상표와 디자인의 관계: 배타적·선택적 관계가 아니다. / 541
2. 디자인의 상표권 침해 / 542
3. 디자인을 상표로 보호하는 방법과 문제점 / 545
제7장 상표의 해외에서의 보호 ···································································· 548
Ⅰ. 해외 국가별 상표권의 확보 방법 ··············································································· 548
1. 해외에서의 상표의 보호제도 / 548
2. 조약에 의한 우선권제도 / 549
3. 통상의 해외출원에서의 국가별 상표등록의 어려움 / 549
Ⅱ. 마드리드 의정서에 따른 국제출원 시스템 ································································· 550
1. 마드리드 의정서 / 551
2. 마드리드 국제출원의 장점 / 552
3. 마드리드 국제출원의 내용 / 553
▶ 판례색인 ···················································································································· 559
▶ 사항색인 ···················································································································· 565