SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
2.5 Notices and Symbols A trade mark owner is not obliged but can choose to indicate that a mark is registered. It is not mandatory to do so, but they can choose to use symbols (eg, ®) to denote registration, and there are no rules on how to use these symbols. If there is infringement of a mark that is indicated as having been registered, there is a presumption of intent in the infringement. Therefore, this indication is useful in claiming damages for infringement. 2.6 Related Rights Trade marks can also be protected under the CA and the Design Protection Act. If a registered trade mark use conflicts with another’s patent, utility model or design rights for which an application was filed prior to the trade mark applica - tion filing date, or with another’s copyright occurring prior to such filing date, said trade mark cannot be used without the consent of the relevant rights hold - ers. Trade mark rights can also be restricted. Even if a surname/name is registered as a trade mark (where it is uncommon, or where it is common but has acquired distinctiveness through use) (see 2.1 Types of Trade Marks ), others can use their real name if it is con - sistent with commercial practices, or an author can indicate their real name or pseudonym on the original and copies of their work. Such use or indication does not constitute trade mark infringement. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Works that are eligible for copyright protection under
• it consists solely of a renowned geographic name or map; • it commonly indicates a common surname/name; or • it is simple and common. However, in exceptional cases, if a mark under the last four points above acquires distinctiveness through use as a source indicator of a specific person’s goods, it may be registered only for the goods where the mark was used. Distinctiveness acquired through use (gaining of sec - ondary meaning) can be evidenced by the following, for example: • the trade mark used; • the goods it was used on; • the fact of use; • the period and geographical scope of use; • the sales figures or market share; Trade mark rights are granted upon registration, and a trade mark owner has the exclusive right to use the registered trade mark for designated goods under the TMA. Another’s unauthorised use of the registered trade mark on designated goods constitutes trade mark infringement. Trade marks are maintained for the term of their dura - tion, and the term of trade mark protection is ten years from the registration, renewable every ten years, effec - tively rendering it indefinite. However, if the registered trade mark is not used for at least three consecutive years, the registration may be revoked or cancelled. 2.4 Use in Commerce To establish the use of a registered trade mark, the mark should be used to indicate the source of a par - ticular good. It does not constitute trade mark use or infringement if the mark is used merely for informa - tional/explanatory purposes regarding a good’s con - tents rather than distinguishing the good from those of others. • advertising methods and content; and • objective consumer awareness surveys. 2.3 Trade Mark Rights
the CA include: • literary works; • musical works; • dramatic works; • artistic works; • architectural works; • pictorial works;
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