SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
rights-holder receives appropriate compensation, and the need to protect consumers. 2.6 Trade Mark Enforcement and Remedies Infringement Trade mark infringement is established when a party uses an identical or similar mark on identical or simi- lar goods or services, creating a likelihood of con- sumer confusion regarding the source of the goods. While the Trademark Act provides grounds to refuse or invalidate the registration of marks that might impair the distinctiveness or reputation of another’s brand, the act of dilution – such as blurring or tarnishment – is not explicitly classified as trade mark infringe- ment under the Act. However, the unauthorised use of a sign identical or similar to a widely recognised mark in a manner that damages its distinctiveness or reputation is prohibited as an act of unfair competition Trade mark disputes follow a bifurcated system: civil courts adjudicate infringement cases (unlike patent infringement cases, which are confined to specific dedicated district courts, trade mark infringement cases can be filed in any competent District Court) while the IPTAB handles matters concerning the valid- ity and scope of trade mark rights, including invalida- tion actions. Appeals from civil court judgments and lawsuits challenging IPTAB decisions fall under the exclusive jurisdiction of the IP High Court. Criminal matters involving trade marks are handled by regular criminal courts. Remedies under UCPA. Jurisdiction The primary civil remedies for trade mark holders include injunctions to restrain or prevent infringement, claims for the destruction of infringing goods, and recovery of damages. To assist trade mark holders with their burden of proof, the Trademark Act includes provisions for calculating damages and statutory dam- ages. While Korea generally adheres to a compen- satory damages principle, it has adopted a punitive damages system for wilful infringement, with the limit recently increased to up to five times the actual dam- ages found. Intentional infringement is also subject to criminal penalties. Furthermore, trade mark holders can implement border control measures by registering
their rights with the Korea Customs Service, allowing for the suspension or seizure of counterfeit goods at the border. 3. Copyright 3.1 Legal Framework and Copyrightable Works Sources of Law Copyright protection in South Korea is primarily gov- erned by the Copyright Act. A copyrighted work is defined as a creative work that expresses human thoughts or emotions. The Copyright Act specifically lists the following as examples of works: literary, musi- cal, theatrical, artistic, architectural, photographic, cinematographic, diagrammatic, and computer pro- Applied art works must satisfy two conditions in order to be protected under the Copyright Act: reproducibil- ity for industrial use and separability from the article’s practical or functional elements. “Separability” means that the aesthetic element of the article is distinct from its functional features, is recognised as having its own independent character, and can be applied to other articles on its own. If an article’s shape simultaneously embodies both aesthetic and practical and functional elements, then even if the shape is aesthetically pleas- ing, it cannot be considered conceptually separable. 3.2 Requirements for Copyright Protection Under the Copyright Act, a work must be a creative expression of human thoughts or emotions, and origi- nality does not require complete novelty but only that the expression is not a mere imitation and embodies the author’s own distinctive expression. Ideas them- selves are not protected under copyright law. Regis- tration is not required, but comes with certain benefits. Primarily, the matters recorded in the register (such as the author’s name and date of creation) are presumed to be true unless proven otherwise, shifting the burden of proof to the opposing party. Additionally, registra- tion serves as public notice, enabling the copyright holder to assert their rights against third parties in cases of transfer or licensing, and facilitates the cal- culation of damages in infringement lawsuits. gram works. Applied Art
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