SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
research – within a reasonable range and consistent with fair practice. 9.3 Exhaustion Trade Mark The concept of the exhaustion of registered trade mark rights is established in case law with the following requirements: • a legitimate registered trade mark owner should transfer goods bearing the registered trade mark in Korea; and • the transferee should not process or repair the goods in a way that impairs the identity of the original goods. Copyright The CA recognises the exhaustion doctrine, stat - ing that the copyright owner’s right to distribute the work is exhausted once the originals or cop - ies of the work are first provided for sale with the owner’s authorisation. However, there is no established precedent for the exhaustion of digi - tal reproductions. A trade mark owner can request actions beyond prohibiting the infringement, including the destruction of infringing goods and the removal of facilities used for infringement. Similarly, a copyright owner can request the destruction of infringing goods and other actions when filing a claim to halt or prevent infringement. The court typically issues orders to stop infringement and destroy infringing goods held by the infringer if infringement is proven and the defences and exceptions are not upheld. 10. Remedies 10.1 Injunctive Remedies
For registered trade mark/copyright infringe - ment, the rights holder can apply for a pre - liminary injunction, which may be granted if it is necessary to prevent significant harm that is likely to occur while waiting for the final judg - ment or to avert imminent danger. The court determines whether a preliminary injunction is necessary, weighing factors such as the inter - ests and potential losses of both parties and the likely outcome of a lawsuit. When granting a preliminary injunction, the court can require a security provision in the form of a cash deposit or deposit guarantee insurance certificate, the amount of which depends on the subject of the preliminary injunction. 10.2 Monetary Remedies Generally, damages from a tort are the differ - ence between the injured party’s total assets absent the infringement and such assets after the infringement. However, proving this differ - ence is challenging in cases of trade mark or copyright infringement. Consequently, the TMA, UCPA and CA all include provisions for estimat - ing such damages. The damages amount can be presumed as fol - lows: • the volume of the infringer’s goods trans - ferred or sold multiplied by the claimant’s profit per unit of its own goods; • the infringer’s profits gained by the infringe - ment; or • a reasonable royalty (ie, the objective amount that would have been paid had the infringer entered into a licensing agreement with the claimant). If the court finds that proving the exact amount of damages from the infringement is challenging due to the nature of the case, it can determine
593 CHAMBERS.COM
Powered by FlippingBook