Designs are protected in the Republic of Korea under the Design Protection Act. This guide provides foreigner with an in-depth understanding of the procedures, requirements, and legal remedies associated with design registration in Korea.
A trademark in Korea grants the holder exclusive rights to a distinctive sign that identifies and distinguishes the goods or services of one enterprise from those of others. Trademarks can include words, logos, symbols, colors, and even sounds. The primary characteristics of a trademark include:
Trademarks provide protection for an initial period of 10 years from the filing date. This protection can be renewed indefinitely for additional 10-year periods, as long as the trademark is in use and renewal fees are paid.Design protection in Korea grants the holder exclusive rights to the visual aspects of a product, which include its shape, pattern, color, or any combination thereof. These aspects must be new and create an aesthetic appeal to qualify for protection. The primary characteristics of a protectable design include:
In addition to standard design protection, Korea has several unique provisions to address specific needs and market conditions:
Partial design protection allows applicants to protect a part of a product's design rather than the whole product. This is particularly useful for components of larger products that have distinctive designs.
The related design system permits the registration of designs that are similar to an already registered design by the same applicant. This system allows for the protection of design variations, ensuring comprehensive coverage of the applicant’s creative works.
Secret design registration allows applicants to keep their design confidential for up to three years from the filing date. This provision helps businesses protect their designs during the early stages of product development and market introduction.
Korea follows the Locarno Classification for Industrial Designs, an international classification system that categorizes designs into different classes and subclasses based on the nature of the product. This system helps in the organized registration and search of designs.
The set of articles design protection allows applicants to register multiple designs as a set if they are intended to be used together or share a common design concept. This system is beneficial for products sold in sets, such as cutlery, furniture, or stationery.
Korea recognizes the importance of digital and software-based designs, offering protection for graphical user interfaces (GUIs). This includes the visual design of software applications, icons, and screen layouts. GUI design protection ensures that innovative digital designs receive the same level of protection as physical product designs.
This unique provision allows for the protection of designs that are not visible during normal use but can be seen when the product is disassembled. This is particularly relevant for internal components of electronic devices or machinery, where the internal design plays a role in the product's overall appeal and function.
The transition to the PSES aims to expedite the registration process for short-term life-cycle products. Under the PSES, applicants can achieve registration within one or two months from the filing date and benefit from new procedures such as Multiple Application and Post-Grant Opposition. Despite the lack of substantial examination under the PSES, the registered rights hold the same validity as those under the SES. However, non-compliant registrations under the PSES can be canceled or invalidated through Post-Grant Opposition or Trial.
To obtain a design registration, the following documents must be submitted to the Commissioner of KIPO:
Documents (a) and (b) must be submitted at the time of filing. The priority document and power of attorney can be submitted later.
Priority can be claimed under the Paris Convention or other international treaties. The design application must be filed within six months of the priority application date.
Design applications should include:
Drawings may include perspective, front, rear, side, top, and bottom views. For flat articles, only top and rear views are necessary. Photographs or samples of the design can substitute for drawings.
KIPO checks the application for all formal requirements to accord a filing date. Applications are returned without an application number if:
Once the application meets formal requirements, KIPO assigns an application number and checks for additional formal compliance.
Upon request, a design application may be published in the "Design Laid-open Gazette." Once published, any person can submit information regarding the registrability of the design. Applicants can issue written warnings to alleged infringers and claim compensation for infringements from the date of the warning until the design registration date.
Design applications are automatically examined in filing order. Examination generally takes about one year from the filing date. Expedited examination can be requested if:
To be registrable, a design must:
Even if disclosed by the applicant prior to filing, a design is considered novel if the application is filed within 12 months of disclosure, under the Exception of Loss of Novelty.
If no grounds for refusal are found, or objections are overcome, the examiner grants registration. The design registration is published in the "Design Registration under the SES Gazette."
Under the PSES, applicants can file for up to 100 designs within a single category. Required documents are the same as those under the SES. Applicants must indicate serial numbers of the designs in the application.
Examiners check if the design:
If flaws are found, the examiner issues a notice of refusal, allowing the applicant to amend within a specified period. If no flaws are found, registration is granted without a substantive examination.
KIPO publishes the "Design Registration Gazette under the PSES" after the registration fee is paid.
Any person can file an opposition within three months of publication. Grounds for opposition include lack of novelty, creativity, industrial applicability, and other unregistrable designs.
The Korean design protection system, with its evolving SES and PSES, offers robust and efficient pathways for design registration.
