Unlike patent applications, which are published in full after a fixed period to prevent redundant research and investment, the details of design applications are disclosed via publication in the Design Gazette at the time of registration. Parties may postpone the disclosure of a design using the secret design system. A recent amendment to the secret design system aims to offer applicants stronger protection and enable the strategic management of applications for new product designs.
Where an application for a trademark which is substantially similar to a prior registered trademark is successful, does the use of the later filed trademark constitute infringement of the prior registered trademark? This situation is not explicitly addressed by the Trademark Act, but the courts have traditionally held that it does not constitute infringement. However, a recent Supreme Court ruling overturned this convention, highlighting the importance of early filing in South Korea.
Recent amendments to the Trademark Act and the Design Protection Act have added support for treble damages in certain infringement scenarios. These amendments follow similar changes to the Patent Act and the Unfair Competition Prevention and Trade Secret Protection Act relating to wilful patent infringement and trade secret misappropriation which came into effect in July 2019. This article examines the amendments in detail.
There is no obligation to mark IP rights on products in South Korea. Whether to do so is at the discretion of the IP owner and no direct negative legal consequences arise from a failure to indicate IP rights. Nevertheless, indicating IP rights does grant some legal benefits. Further, from a practical sense, it may be a useful advertisement or marketing tool. This article examines the risks and benefits of IP marking.