SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
7.4 Prerequisites and Restrictions to Filing a Lawsuit There is no prerequisite to filing a lawsuit for trade mark/copyright holders. However, the rights holder’s exercise of an exclusive registered trade mark right/copyright where infringe - ment is not established and they know of such fact, or such fact is objectively clear, may constitute an improper exercise of IP rights in violation of Korean competition law, particularly if such an exercise poten - tially restricts competition in the relevant market. In addition, a rights holder may be deemed to have com - mitted a tort and/or criminal interference with business for sending, without adequate review, a warning letter to the business partners of another party claiming that the party’s goods infringe on the holder’s IP rights. 7.5 Lawsuit Procedure Registered Trade Mark For a registered trade mark infringement lawsuit, exclusive jurisdiction at first instance lies with the Seoul Central District Court or other district courts, depending on the plaintiff’s or defendant’s address or the location of the infringement. However, such suit may be filed with the Seoul Central District Court regardless of the foregoing locations. The second instance court is the IP High Court, and the third instance court is the Supreme Court. Unregistered Trade Mark and Copyright For unregistered trade mark infringement (if appli - cable) or copyright infringement, a lawsuit can be filed at any district court governing the plaintiff’s or defendant’s address or the location of the infringe - ment, or other relevant district courts. The appellate court is either the high court governing the respective first instance court or the collegiate division of the respective district court. The final appeal court is the Supreme Court. Lawsuits for Trade Mark and Copyright Prior to filing a lawsuit, it is common, but not man - datory, to request an attorney to review whether an infringement occurred, to send warning letters or to attempt dispute resolution through negotiation. While litigation can be conducted pro se, it is typically con - ducted with legal counsel. Foreigners can also file
• using copies of software for business, knowing that the copies were made by infringing the software copyright; and • using the copyrighted work in a manner defaming the author’s reputation. The moral rights of the copyright owner are consid - ered infringed when a person publishes unpublished works without the permission of the copyright owner, does not indicate the name of the author against the owner’s will, or alters the copyrighted work without the owner’s permission. Claims for copyright infringement include an injunc - tion against infringement, the destruction of infring - ing materials, compensatory damages and criminal sanctions. Prohibition on Removal or Alteration of Copyright Management Information “Rights management information” is information attached to original works or copies to identify the work and the copyright owner. Removing or altering such information, either knowing or being negligently unaware that it would lead to infringement, is pro - hibited. Copyright owners can claim an injunction or compensatory damages against violators. 7.3 Factors in Determining Infringement Trade Mark The main factor in determining infringement is the similarity of the trade marks, which is assessed based on the overall appearance, appellation and concept of the trade mark from the standpoint of ordinary con - sumers, in a holistic, objective and detached manner, to determine whether there is a likelihood of confusion or misunderstanding about the source of the goods. Copyright To establish copyright infringement, substantial simi - larity and a relationship of dependence are required. A relationship of dependence is presumed if the acces - sibility to the original work and the similarity between the work in question and the original work can be found. These standards under the TMA and CA have been established through case law.
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