South Korea recently overhauled its employment laws. Some of the most significant changes that may have an impact on business operations concern annual paid leave entitlements and fertility treatment leave, eligibility for childcare leave, protection for workplace sexual harassment victims, mandatory disability awareness training and the scope of the anti-discrimination statutes.
The Seoul High Court recently ruled that an employee's repeated personal use of his or her corporate card, in and of itself, may not always constitute sufficient just cause for termination. The court's ruling is an adverse precedent that may have an impact on many businesses as they consider whether to terminate an employee for personal use of corporate cards. However, this case is now pending before the Supreme Court.
In recognition of the hardship faced by emotional labour workers, there have been increasingly audible calls to improve their working environment, which has led to a view that employers must take proactive steps to protect the health and wellbeing of such employees. Although legislative changes have been insubstantial, the National Assembly of Korea recently passed legislative amendments to the Occupational Safety and Health Act which seek to protect emotional labour workers.
The National Assembly recently passed a legislative amendment designed to reform the Labour Standards Act. The new legislation is projected to have a significant impact on all industries and levels. According to a study by the Korea Economic Research Institute, the additional annual labour costs that companies will incur is likely to exceed W12 trillion ($11 billion) in total.
The latest amendment to the Unfair Competition Prevention and Trade Secret Protection Act introduced a new provision prohibiting unfair competition in connection with 'idea theft' – the unfair use of the ideas of another that were acquired as part of a business negotiation or transaction. The purpose of the amendment is to provide additional protection for creative business ideas that may not be as easy to protect as typical forms of intellectual property, such as patents, copyright or trademarks.
The Korea Customs Service recently issued an announcement regarding proposed amendments to the Korea Customs Guidelines for Import and Export Customs Clearance Procedures for Intellectual Property Rights. Of note for brand owners is the fact that the customs recordation term is set to increase from three years to 10 years. Further, the process for recording patent and design rights will be simplified and the bond for small importers and exporters that challenge detainments of goods will be reduced.
Under the amendment to the Court Organisation Act, certain courts handling IP cases have been given authority to establish international panels of judges to review cases in languages other than Korean as a way of making South Korea a more attractive venue for foreign litigants to bring IP litigation cases. To provide further details on the implementation of the amendment, the Supreme Court promulgated its Rules on the Establishment and Operation of International Panels, which are now in effect.
According to data recently published by the Korean Intellectual Property Office, the number of non-use cancellation actions filed in South Korea has significantly increased in recent years, resulting in nearly double the number of registrations being cancelled in 2017 compared with previous years. As such, trademark owners with portfolios which include marks not currently active in South Korea should seek legal advice to determine the most effective strategy for protecting their trademark rights.
The Supreme Court recently ruled en banc that the AMERICAN UNIVERSITY trademark was sufficiently distinctive among South Korean consumers to be registered in connection with university education services, instruction services and other designated services. The court's reasoning is notable because it appears to hold that consumer awareness evidence can be used to prove the inherent distinctiveness of a mark in South Korea.