SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
10.5 Customs Seizures of Counterfeits or Parallel Imports Customs Seizures of Counterfeits Korea Customs Service offers a procedure to detain goods infringing on IP rights. To protect these rights at the customs level, rights hold - ers must file a “rights protection report” with the Customs Service. Following this, they can sub - mit a request for customs detention and provide security. Parallel Imports Parallel imports are permitted in the following cases: • the imported good is authentic, with the trade mark legally affixed by the overseas trade mark owner; • the identity of the source is satisfied, such as the domestic and foreign trade mark owners being the same person; and • there is no significant quality difference between the imported goods and the domes - tic trade mark owner’s goods. In addition, parallel importers must not falsely represent themselves as official dealers of the good. However, for copyright, there is no explicit reg - ulation on international exhaustion, leaving the legality of parallel imports unclear.
a reasonable amount based on the entirety of the proceedings and the outcome of evidence examination. For wilful infringement, the TMA provides for treble damages, while the UCPA provides for quintuple damages. Under both the TMA and the CA, the rights hold - er may elect to claim either actual damages or statutory damages as compensation. Statutory damages are relatively easy to obtain even when evidence of actual damages is insufficient. How - ever, they are only applicable for cases involving registered trade marks, and are subject to caps. The TMA caps statutory damages at KRW100 million (up to KRW300 million for intentional infringement), whereas the CA caps it at KRW10 million per work (up to KRW50 million for inten - tional infringement for profit). 10.3 Attorneys’ Fees and Costs Typically, the losing party is responsible for pay - ing litigation costs, including attorneys’ fees. However, since attorneys’ fees can vary, the court regulates the amount to be included in liti - gation costs through its rules. These rules set the attorneys’ fees as a percentage of the claim amount, which varies depending on the size of the claim. 10.4 Ex Parte Relief An application for provisional attachment or sei - zure is carried out solely by the creditor, without notifying the debtor. It can be initiated concur - rently with, immediately before or after filing a lawsuit. The aim is to prevent the debtor from concealing assets, and the debtor remains unin - formed until a decision is made. This proce - dure, however, is not exclusive to trade mark or copyright owners, but is a generally recognised enforcement procedure.
11. Appeal 11.1 Appellate Procedure
The appellate court for a registered trade mark infringement lawsuit is the IP High Court, while for unregistered trade mark or copyright infringe - ment lawsuits the appeal is heard by high courts with jurisdiction over the first instance court or
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