The trademark use requirements in the United States and Korea: Insights from domain name disputes and prospects for harmonization

The notion of "use" is very important in trademark law because it is closely related to the establishment and/or maintenance of trademark ownership, and enforcement of trademark rights. Use of a trademark provides a basis for the creation and maintenance of trademark ownership in the United States and for the maintenance of trademark ownership in Korea. On the other hand, in order to enforce trademark rights, a plaintiff must prove that the defendant "used" its marks in a certain manner. Even though the use requirements are key elements in trademark protection in the United States and Korea, the two countries have different use requirements from each other. The reason for the disparity is the different policy goals of trademark protection. In the United States, the policy of consumer protection against confusion is more important than the protection of trademark owner's goodwill, and in Korea, vice versa. The differences in the policy goal of trademark law result in the disparity in the trademark ownership acquisition system and the scope of trademark protection. The differences may sometimes produce opposite outcomes even under very similar circumstances. The role of use requirements in trademark law and their influence on trademark protection is more evident in domain name-related cases when a domain name registrant wants to protect its domain name as a trademark and when a third party registers or uses another's trademark as a domain name.; The different use requirements of each country must be harmonized in order to avoid remarkable disparity in trademark protection in the era of globalization. In the process of harmonization, two competing goals of trademark protection, consumer protection and trademark owner protection, must be considered together. In addition, considering the importance of trademarks as a social communication symbol, a balance with the right to free speech should be also considered. Harmonizing the use requirements is an important precondition towards harmonization of trademark laws, and harmonized national laws will enhance welfare worldwide.