SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
8.2 Effect of Registration See 3.7 Copyright Registration , 4.1 Trade Mark Reg- istration and 7.2 Legal Claims for Infringement Law- suits and Their Standards . 8.3 Costs of Litigating Infringement Actions Infringement litigation costs can vary significantly based on various factors, including the case complex - ity, the volume and scale of the infringements, etc. 9. Defences and Exceptions to Infringement 9.1 Defences to Trade Mark Infringement Defendants typically counter plaintiffs’ trade mark infringement claims with the following defence argu - ments: • statute of limitations for a damages claim; • the contested mark or goods are not identical/ similar; • the defendant’s use does not constitute registered trade mark use; • the plaintiff’s trade mark registration is clearly inva - lid or the plaintiff has not used the registered trade mark for an extended period unlike the defendant, thereby constituting an abuse of rights; • the defendant’s trade mark use constitutes use of its own name consistent with commercial practices or use of a customary mark, and thus is outside the scope of the trade mark right; or • the defendant is entitled to continue using the mark as they have done so without any unlawful intent before the plaintiff’s trade mark registration or before the plaintiff’s trade mark became famous. Some of these defences are codified in law, while oth - ers have been recognised through case law. If these defences are accepted, the plaintiff’s claim will be entirely dismissed. However, if the last defence con - cerning the continued use is accepted, the trade mark owner can request the defendant to make indications necessary to prevent confusion or misunderstanding.
9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) Fair Use There are certain restrictions on economic rights in that copyrighted works can be used without the copy - right owner’s consent for educational purposes, news reports, the citation of published works, or incidental reproduction during filming. In addition, a copyrighted work can be used with - out the copyright owner’s consent as fair use if the use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the author’s legitimate interests under the CA. Factors for determining fair use include: • the purpose or character of the use; • the nature of the work; • the amount and substantiality of the portion used in relation to the work as a whole; and • the effect of the use upon the current and potential market for the work or the value of the work. The TMA does not make provisions addressing fair use. Satire and Parody Published works can be quoted for certain purposes, such as criticism, education and research within a proper range, in compliance with fair practices. Satire or parody may fall within the scope of criticism, and would more likely qualify for the exception if: • it is for non-commercial purposes; • the original work is well known and thus it is easy to note that it is a satire or parody of the original work; • only a small portion of the original work is used in the satire or parody; or • there is less concern that the satire or parody may replace the original work. Contrary to a direct satire/parody that criticises the original itself, a vehicle satire/parody that uses the original to criticise other subjects may not qualify for the exception.
540 CHAMBERS.COM
Powered by FlippingBook