SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
• the prevention of infringement; • the removal of the infringing goods; • compensatory damages; • the restoration of a registered trade mark owner’s reputation; and • criminal sanctions. In addition, one can file a proactive trial to IPTAB (simi - lar to a declaratory judgment) to confirm that the use of a trade mark falls within the scope of one’s regis - tered trade mark rights. To claim trade mark infringement, all the following must be asserted and established: • the registered trade mark validly exists; • infringement is within the scope of registered trade mark protection; • the use is without legitimate authority; • the use qualifies as a registered trade mark use; and • the registered trade mark rights are not restricted, such as where the use of one’s own trade name is merely consistent with commercial practices. Korean law does not distinguish between direct infringement, vicarious infringement and contributory infringement in cases of trade mark infringement. For a damages claim, aside from the aforementioned requirements, all the following must also be asserted and established: • the infringer acted intentionally or negligently; • there is a causal relationship between the infringe - ment and the injury; and • the amount of actual damages. Furthermore, criminal liability arises when the infring - er’s intent is proven. Unregistered Trade Mark Infringement An unregistered trade mark generally lacks the legal basis for the above remedies. However, an unregis - tered trade mark that is widely recognised in Korea can still be protected under the UCPA through an injunction, damages claim, restoration of a trade mark owner’s reputation and criminal sanctions. The
protection for unregistered trade marks differs from registered trade marks as it specifically requires the mark to be well known or famous. Dilution of Trade Mark The UCPA prohibits acts that dilute the distinctive - ness or reputation of a famous trade mark, and, in cases of violation, allows for a request for injunction, damages claim, restoration of a trade owner’s reputa - tion and criminal sanctions. However, continuous use of a trade mark before it becomes famous, without unlawful intent, does not constitute an act of unfair competition, nor does non-commercial use or use in In the case of cyber-squatting, the UCPA prohibits acts such as registering or using a domain name that is identical/similar to a famous trade mark for the pur - pose of: • selling or leasing the domain name; • interfering with the registration and use of the domain name by the rights holder; or • other commercial profit. news reporting. Cyber-Squatting Available remedies include injunction, compensatory damages and restoration of a trade mark owner’s reputation. Copyright Infringement A copyrighted work is considered infringed when any of the exclusive rights granted to a copyright owner is exercised without the owner’s permission, unless an exception applies. Korean law does not distinguish between direct infringement, vicarious infringement and contributory infringement in cases of copyright infringement. The following acts are considered copyright infringe - ment: • importing, for distribution within Korea, products that would infringe copyright if they had been made in Korea; • possessing products for distribution, knowing that they were produced by infringement;
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