SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
4.5 Functionality and Technical Features Functionality Test In determining whether a specific feature is dictated by function, courts consider the existence of alterna- tive shapes capable of performing the same function as a key criterion. Partial Designs and Exclusions If a portion of a design forms an independent aesthetic impression, it may be registered as a partial design under the Design Protection Act. To apply for regis- tration as a partial design, it is common practice to depict the part intended for protection with solid lines and the excluded parts with dashed lines. Refusal and Invalidity Designs dictated by technical necessity may theoreti- cally be refused registration or invalidated. However, since it is rare for an entire design to consist solely of functional shapes, this provision is infrequently applied in practice. In Korea, trade secret protection under UCPA requires that the information be non-public, economically valuable, and kept secret. Information is considered non-public if it cannot ordinarily be obtained without access to the holder. A published patent application can destroy that secrecy, but the mere possibility of reverse engineering does not, by itself, negate non- publicity. Types of Information Information protected as trade secrets encompasses technical or business information. Court precedents recognise various types of information as trade secrets, including manufacturing methods, usage methods, customer lists, business plans, and person- nel management techniques. Furthermore, passive or negative information, such as records of past failures, can also be protected as trade secrets if it contributes to saving time, costs, or effort. 5. Trade Secrets 5.1 Legal Framework and Protectable Information Sources of Law
5.2 Reasonable Measures and Confidentiality To qualify as a trade secret, information must be man- aged as secret in a way that is objectively recognisa- ble – eg, by marking it confidential, restricting access, or imposing confidentiality duties on recipients. Under UCPA, the level of effort required to establish this requirement has been relaxed over time – from “substantial effort” to “reasonable effort” – and now it is sufficient that the information is simply managed as secret. In the case of disclosure to employees, the information should be marked confidential and access should be restricted, with secrecy management assessed in light of the company’s size and other cir- cumstances. In the case of disclosure to a business counterparty, the key issue is whether a confidentiality obligation has been imposed. If the recipient is a third party with no direct contractual relationship, it must take action once it becomes aware that the informa- tion has been disclosed. 5.3 Misappropriation of Trade Secrets Under UCPA, trade secret misappropriation is funda- mentally composed of two types: (i) illicit acquisition by third parties and (ii) breach of obligations by those bound by confidentiality duties. The illicit acquisition by third parties refers to acts of acquiring trade secrets through theft, deception, coer- cion, or other improper means, as well as the act of acquiring, using, or disclosing them while aware of such improper acquisition. Disputes with competitors typically fall under this category. Persons under a duty of confidentiality include not only those in a contractual relationship but also those who bear a duty of confidentiality under the principle of good faith even after the termination of a contract. However, in this case, the intent to obtain an illicit gain or to cause damage is required. Disputes with employees and investors typically fall under this cat- egory. 5.4 Duration and Loss of Protection While trade secrets are theoretically protected in per- petuity as long as they remain confidential, this pro- tection is effectively limited once a leakage occurs. In the event of misappropriation, while a trade secret
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