SOUTH KOREA Law and Practice Contributed by: Heejun Choi, Kyoung-Ho Kim, Sungsok Yang, Eunjee Kim and Kwang-Chun Park, Dentons Lee
Intentional trade mark infringement may also result in criminal liability and infringing goods may be seized or confiscated. 7.3 Industrial Designs Under the Korean Design Protection Act, a design is the shape, pattern, colour or combination thereof embodied in an article (including part of an article, a typeface or a graphical user interface/image) that cre - ates an aesthetic impression through visual percep - tion. Korean design law protects the visual appearance of products rather than their technical functionality. Korea operates a registration-based design protection system. A design right arises upon registration with the Korean Intellectual Property Office (“KIPO”), giving the owner the exclusive right to commercially exploit the registered design and similar designs. The protection term is 20 years from the filing date. The right becomes enforceable upon registration, sub - ject to payment of the prescribed maintenance fees. To obtain protection, an applicant must file a design application with KIPO. A design must generally be industrially applicable, novel and not readily creatable by a designer of ordinary skill based on prior designs. Korea also recognises a statutory grace period for cer - tain prior disclosures. Design infringement is assessed by comparing the overall visual impression of the registered and accused designs from the perspective of an ordinary observer. Certain forms of indirect infringement are also recognised. A design owner or exclusive licensee may enforce its rights through civil proceedings. Available remedies include: • injunctions; • destruction of infringing products or facilities; • damages; and • provisional relief, including preliminary injunctions. Damages may be assessed by reference to the infring - er’s profits, a reasonable royalty or other statutory methods, supported by evidentiary presumptions.
The validity of a registered design may be challenged through an invalidation trial before the Intellectual Property Trial and Appeal Board. A finally invalidated design is generally deemed never to have existed and courts may refuse enforcement of a clearly invalid design on abuse-of-rights grounds. Intentional infringement of a registered design may also give rise to criminal liability under the Design Pro - tection Act. 7.4 Copyright Under the Korean Copyright Act, a copyright work must be a creative expression of human thoughts or emotions. Copyright protects the expression of ideas rather than ideas, concepts, facts, systems or meth - ods. Protection requires a minimum degree of original - ity expressed in a perceptible form. Protected works include literary, musical, artistic, pho - tographic, audiovisual and software works, certain databases and other categories recognised under the Copyright Act. Korean law also recognises neighbour - ing rights of performers, phonogram producers and broadcasting organisations. Unlike patents, trade marks and designs, copyright arises automatically upon creation. Korea follows the principle of non-formality, so registration or publica - tion is unnecessary. Copyright comprises moral rights (publication, attri - bution and integrity) and economic rights, including reproduction, distribution, public performance, pub - lic transmission, display, rental and the creation of derivative works. Economic rights are generally protected for 70 years after the author’s death. Different rules apply to joint works, anonymous or pseudonymous works, works made for hire and audiovisual works. Although registration is not required, Korea maintains a voluntary copyright registration system administered by the Korea Copyright Commission. Registration pro - vides evidentiary benefits and may enhance enforce - ability against third parties.
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