SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
tor 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. How - ever, the shape/configuration of goods, packag - ing 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. Moreover, 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 appear - ance) of another’s business in Korea, thereby impairing the distinctiveness or reputation of that identifier; and • transferring, displaying, importing or export - ing goods that imitate another’s goods in form/configuration, provided that three years have not yet elapsed since such form was established and it does not take the usual form of similar goods. In addition, a design can be protected under the Design Protection Act if it meets the require - ments regarding industrial applicability, novelty and creativity, and is registered. Furthermore, a design can be protected under the CA if it con - stitutes an applied art work that is considered to have independent creativity distinct from its function. Special Rules Regarding Certain Marks/ Indicators Surname/name as marks Common surnames/names cannot be registered as trade marks since they lack distinctiveness. However, a foreign surname that is common in its country of origin but uncommon in Korea can be registered. If a person’s name/surname/busi -
ness name is uncommon but famous, it can be registered as a trade mark with the consent of that person. National flags, emblems and insignia of international organisations Trade marks cannot be registered if they consist of a national flag or the insignia of an interna - tional organisation, or are identical/similar to the name, abbreviation or emblem of a renowned international organisation (eg, the International Olympic Committee), unless they are registered by the organisation itself. The International Olympic Committee owns the “Olympic” trade mark in Korea. Collective marks and certification marks A collective mark is used by a collective organi - sation (eg, co-operative) and its members to identify goods related to the organisation’s busi - ness. A certification mark is used by an entity engaged in the business of certifying and man - aging the quality, origin, production method, etc, of goods to prove that another’s goods meet these criteria. Generally, trade mark registration applications and trade mark rights are transferable. However, collective marks or certification marks can only be transferred in special circumstances (eg, mergers and business transfers), and pledges or exclusive licences cannot be established on rights related to these marks. Geographical indications Generally, a trade mark that only indicates the origin of goods in a common manner (ie, plain descriptions without images or symbols) or that consists solely of a highly renowned geographi - cal name cannot be registered. However, a fore - going mark can be registered as a “collective mark of geographical indication” if it functions as
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