SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
where one of them uses such registered trade mark for the purpose of unfair competition, causing confusion or misunderstanding; • using a registered trade mark constituting unfair competition by the unauthorised use of another’s achievements; and • improperly using a collective mark or cer - tification mark in violation of the articles of incorporation. For the first, fourth and sixth grounds above, a revocation action cannot be filed after three years from the date the relevant grounds ceased to exist. For the fifth ground, a revocation must be filed within five years, but a revocation can be filed at any time for the third ground. For the second ground, the trade mark must have been unused for at least three consecutive years up to the date of filing the revocation Invalidation An interested party or an examiner can file for invalidation if a trade mark is registered despite lacking distinctiveness, having grounds for non- registration, having another prior application for an identical/similar mark, etc. All of the grounds for a refusal of trade mark registration (except for the violation of the one trade mark per appli - cation rule) constitute grounds for invalidation. An invalidation action can be raised at any time while the grounds for invalidation exist. However, an invalidation may only be filed within five years from the date of registration for the following grounds for invalidation: • trade marks including the name, title or por - trait of a famous person; • trade marks identical/similar to another’s prior registered trade mark, another’s prior applica - tion, another’s collective mark with geograph -
ical indication, or a widely recognised trade mark or geographical indication; • trade marks for geographical indications for wines or spirits in WTO member states; • applications filed after the period for the renewal registration elapsed; and • failure to apply for classification conversion registration within the application period. Annulment of Copyright Registration There is no procedure for third parties to seek revocation of a registered copyright. Therefore, any discussion of copyright is hereinafter omit - ted, unless there is a noteworthy issue. 5.2 Legal Grounds for Filing an Opposition or Cancellation The grounds for opposition are the same as the grounds for refusal of registration. Please see 5.1 Timeframe for Filing an Opposi- tion or Cancellation for the grounds to revoke or invalidate a trade mark registration. When a revocation decision becomes final, the registered trade mark right is extinguished at that point. However, if revocation is due to non-use, such trade mark right is deemed extinguished as of the date of filing the revocation. When an invalidation decision becomes final, the registered trade mark right is deemed to have never existed. However, if the registered trade mark later loses distinctiveness, such trade mark right is considered non-existent from such point onwards. When a revocation or invalidation decision becomes final, KIPO will annul the trade mark registration ex officio.
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