SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
High Court, and the third instance court is the Supreme Court. Unregistered Trade Mark and Copyright For unregistered trade mark infringement (if applicable) 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 infringement, 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 respec - tive 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 mandatory, 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 con - ducted pro se, it is typically conducted with legal counsel. Foreigners can also file an infringe - ment lawsuit if they hold registered trade marks or famous trade marks, or if they are entitled to copyright protection under a treaty. 7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants A defendant in a registered trade mark infringe - ment lawsuit often files an invalidation action with IPTAB. An alleged infringer who has received a warning letter can also initiate declaratory judg - ment actions by arguing that there is no infringe - ment, and can request IPTAB to confirm that their use of the trade mark does not fall within the scope of the registered trade mark rights. If either party disagrees with the IPTAB decision, they may file a lawsuit with the court.
Similarly, in copyright disputes, a party may seek a declaratory judgment from the court before an infringement lawsuit is filed. To do so, the party must demonstrate a legitimate interest in obtain - ing such a declaration. This interest is generally recognised if the party has received a warning letter. However, if an infringement lawsuit has already been filed, a declaratory judgment action is not permitted because the defendant can dispute the issue of infringement in that lawsuit and ulti - mately resolve the matter. 7.7 Small Claims KIPO operates an Industrial Property Rights Dispute Mediation System. The Mediation Com - mittee resolves disputes regarding trade marks by inducing settlement. The mediation process is confidential and can be promptly completed within only three months; there is no application fee. However, if the mediation is unsuccessful, the dispute must ultimately be resolved through litigation. KCC operates the Copyright Dispute Mediation System, which is almost identical to the Indus - trial Property Rights Dispute Mediation System. 7.8 Effect of Trade Mark and Copyright Office Decisions IPTAB can issue a confirmatory judgment deter - mining whether a particular use of a trade mark falls within the scope of a certain trade mark’s rights. The IPTAB judgment does not have bind - ing legal force in court, although the courts gen - erally defer to IPTAB confirmatory judgments preceding the matter at hand. For decisions relating to opposition, revocation or invalidation, IPTAB decisions are analogous to first-instance judgments in a judicial process;
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