SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
Yoon & Yang LLC 6th, 17th, 18th, 19th, 22nd, 23rd, 27th, 34th Floors, ASEM Tower 517 Yeongdong-daero
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1. Trade Mark and Copyright Law 1.1 Governing Law Trade marks are governed by the Trade Mark Act (TMA) and the Unfair Competition Prevention and Trade Secret Protection Act (UCPA). The TMA gov - erns overall matters regarding trade mark registration and the protection of registered trade marks, while the UCPA governs unfair competition involving trade marks, and the Copyright Act (CA) governs copyrights. Korea does not recognise common law trade marks and copyright. 1.2 Conventions and Treaties/Rights of Foreign IP Holders Korea is a member of or follows the World Trade Organization (WTO), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agree - ment), the Paris Convention, the Madrid Protocol, the Vienna Agreement, the Berne Convention and the WIPO Copyright Treaty, among others. The Korean Constitution recognises international trea - ties, once concluded and duly promulgated, as having the same legal effect as domestic laws. The TMA and the CA each contain provisions regulat - ing the trade marks and copyrighted works of foreign nationals. These provisions are generally based on the principle of reciprocity and stipulate that foreign nationals’ trade mark rights and copyrights are pro -
tected in accordance with the treaties concluded by Korea.
2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks Trade Marks and Source Identifiers Under the TMA, a protected trade mark is a mark dis - tinguishing one’s goods from those of others. A mark encompasses all signs used to indicate the source of the goods, and may consist of or be expressed in symbols, letters, figures, sounds, scents, 3D shapes, holograms, motions or colours. A design (eg, industrial design) involving a product’s form or packaging can be a source indicator of goods and can qualify as a trade mark if it distinguishes the goods from those of others. Trade dress is not clearly defined in Korea. However, the shape/configuration of goods or packaging or the appearance of a business place can indicate the source of goods, and can qualify as a trade mark if it distinguishes the goods from those of others. Moreo - ver, the UCPA prohibits unfair competition regarding the appearance of a business place and the shape of goods, as follows: • using an identifier that is identical or similar to a well-known identifier (eg, overall appearance) of
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