SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
4.4 Enforcement and Remedies Scope of Protection
be replicated as a shape independent of the underly- ing article may qualify as “applied art” (see 3.1 Legal Framework and Copyrightable Works ) and thus receive protection under the Copyright Act. Further- more, UCPA may provide relief by prohibiting the imi- tation of product shapes and the unauthorised use of another party’s “achievements” in ways that contra- vene fair commercial practices. Trade Dress Protection South Korean law does not recognise an independ- ent trade dress right, but provides indirect protection under UCPA. Specifically, for acts causing business confusion, the UCPA explicitly encompasses within protected “business indications” the manner of selling goods or providing services, plus the overall appear- ance of business premises – including signs, exteri- ors, and interior decorations – yielding effects akin to To register an industrial design in Korea, one must file an application with the MOIP including detailed draw- ings and a description of the article. Most industrial goods undergo a Substantive Examination System (taking 8–12 months), while fashion and fast-moving consumer items are eligible for the Partial-Substantive Examination System, which grants registration in as little as one to two months. Upon filing, the examiner reviews industrial applicability, creativity, and similarity to existing designs. Similarity is assessed by consid- ering the article’s use and function together with its shape, form, and colour. Terms of Protection direct trade dress protection. 4.3 Registration and Term Procedure Design rights arise on the date of registration and remain valid until the 20th anniversary of the filing date. There is no renewal system. Costs Design registration requires payment of an applica- tion fee, an initial registration fee, and ongoing annual maintenance fees, with the fee structure differing depending on whether the design is subject to sub- stantive examination or partial examination.
The design right holder exclusively holds the right to exploit the registered design or any similar design for business purposes. Here, “for business purposes” refers to commercial exploitation. Commercial exploi- tation includes manufacturing, using, assigning, leas- ing, exporting, or importing products incorporating the design, as well as offering such products for assign- Design right infringement occurs when a third party, without proper authorisation, commercially exploits a design that falls within the scope of a valid design right’s protection. Indirect infringement arises where a party, for commercial purposes, exploits a product used exclusively for manufacturing the registered design or a similar design. Remedies Civil remedies include claims for injunctions, destruc- tion of infringing goods, and damages. To address the difficulty of proving actual loss, the Design Protection Act includes provisions that help estimate damages, and wilful infringement may give rise to punitive dam- ages of up to five times the recognised loss. The law also provides for criminal penalties against design right infringers. Preliminary Injunction ment or lease. Infringement A preliminary injunction may be sought for urgent relief against design infringement, but it is not granted ex parte and instead involves adversarial proceedings similar to a lawsuit on the merits. Border Measures The Korea Trade Commission (KTC) is an adminis- trative body that investigates and adjudicates unfair trade practices. If an intellectual property infringement is recognised as an unfair trade practice under the relevant unfair trade investigation law, the KTC may issue corrective orders, including suspending imports or exports, and may impose administrative fines.
292 CHAMBERS.COM
Powered by FlippingBook