상표법 제35조 동일자 경합 추첨제도의 의의와 한계 - 361 - ❙Abstract❙ The Lottery System for Resolving Same-Date Application Conflicts under Article 35 of the Korean Trademark Act 58) Lee, Hong Kee* Article 35 of the Korean Trademark Act, while grounded in the first-to-file principle, provides that when two or more applications compete on the same filing date—such that priority cannot be determined by filing date alone—and the applicants fail to reach an agreement, the Commissioner of the Korean Intellectual Property Office determines by lottery which applicant obtains the status eligible for registration. However, leaving the allocation of a trademark—whose value emerges only once goodwill is built through use—to chance based merely on the weak formal requirement of an identical filing date conflicts with both the legislative purpose of the Trademark Act and the first-to-file principle. Moreover, the coexistence-consent system newly introduced under Article 35(6) in the 2023 amendment has aggravated this normative burden, since the lottery now determines not only who holds registrable status but also who serves as the counterparty whose consent must be obtained. This article analyzes the limits of conventional justifications—clarity, expedience, formal equality, and prevention of third-party registration—and examines the incongruity of the Article 35 lottery by comparing it with lottery mechanisms in other legal areas (partition, housing allocation, mining law), the treatment under three neighboring industrial property statutes, and the regimes of Japan, the United States, and the European Union. On this basis, it proposes a phased reform that progressively separates the effects bound up with the lottery—procedural refinement, a coexistence-registration exit at the consultation stage, and limited adjustment of the effect of consent refusal— and suggests, as a long-term task, replacement with a scheme combining rejection of all applications with preservation of priority effect. * Research Professor, Law Research Institute, Sungkyunkwan University; Ph.D. in Law.
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