부정경쟁방지법 제2조 제1호 카목은 사냥허가(hunting license)인가? ―소위 ‘눈알가방’사건과 관련하여

Recently, in the Noonalgabang case the Supreme Court of Korea interpreted the Ka-mok of the Law of Unfair Competition. The court repeated that the Ka-mok is a supplemental general clause of unfair competition law to protect invested labor and capital. However, the Ka-mok could not be interpreted as a general clause but should be interpreted as a unfair competition of misappropriation. In the U.S., the law of unfair competition is invalid against the purpose of other intellectual property laws. If other intellectual property laws make the public domain, the law of unfair competition would not protect a trade practice against the public domain. In France, the civil tort provision is only applicable law to the unfair competition and the Art. 3 of German Unfair Competition Act is understood as a declaratory provision then not be enforced. As long as interpreted as a supplemental general clause, it would be a supreme clause substituting the genuine supreme clause. In the Noonalgabang case the Court stated that the distinctiveness of plaintiff’s bag design has indicative function and then it would be protected as legal interests. However, the defendant use the design at issue not a distinctive sign but simply a design. Then, there is no competition between a sign of designation and a design of product and then, no unfair competition This interpretation accords the precedent which distinguishes between a sign and a design.