Trademarks in the Republic of Korea are protected under the Trademark Act. For such protection, trademarks must be registered with the Korean Intellectual Property Office (KIPO). This guide provides a comprehensive overview for foreigner on the procedures, requirements, and legal remedies associated with trademark 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.
In addition to the standard trademark system, Korea has several unique trademark provisions designed to address specific needs and evolving market conditions.
Korea recognizes sound marks, which are trademarks consisting of distinctive sounds used to identify and distinguish goods or services. These marks must be graphically represented and can include jingles, musical phrases, or other distinctive sounds.
Motion marks are another unique feature of the Korean trademark system. These marks involve moving images or animations that serve as trademarks. Motion marks must be capable of being represented visually and must be distinctive.
Although less common, Korea allows for the registration of scent marks. These trademarks consist of distinctive smells that are not functional or essential to the product. Scent marks must be described in detail and be capable of distinguishing the goods or services of one enterprise from those of others.
Hologram marks are three-dimensional images created using holography that can be used as trademarks. These marks must be distinctive and capable of being represented visually.
Position marks are trademarks that consist of the specific placement of a sign on a product. For instance, the unique position of a logo on a shoe or a particular pattern on clothing can be registered as a position mark. These marks must be distinctive and non-functional.
Korea also recognizes several non-traditional trademarks, such as:
Korea has a special system for protecting geographical indications (GIs), which are signs used on products that have a specific geographical origin and possess qualities, reputation, or characteristics inherent to that location. GIs are protected under the trademark system and can be registered to ensure exclusive rights.
These unique trademark provisions in Korea provide businesses with various options to protect their brand identity creatively and effectively, ensuring robust intellectual property protection in a dynamic market.
Trademarks in Korea are governed by the Trademark Act, which mandates registration with KIPO for protection. The use of a trademark is not required for filing an application. While unregistered trademarks are not protected under the Trademark Act, well-known or famous marks are safeguarded by restricting the registration of identical or similar marks. Infringement of well-known unregistered trademarks can be addressed under the Unfair Competition Prevention Act.
Any person who uses or intends to use a trademark in Korea may file an application for registration. The applicant must have a bona fide intent to use the trademark. Registered trademarks that remain unused for three consecutive years post-registration are subject to cancellation.
To file a trademark application, the following documents must be submitted to KIPO:
Only the application document must be submitted at filing. Missing specimens or power of attorney will trigger a notice of amendment from KIPO. The priority document must be submitted within three months of the filing date.
Applicants must designate goods/services according to the Nice Classification. Korea adopted the Nice Classification on March 1, 1998. Applications covering multiple classes require additional fees for each classification.
Priority can be claimed by applicants from countries part of the Paris Convention or under reciprocal agreements. Applications must be filed in Korea within six months of the priority application date, with the priority document submitted within three months.
Applications failing to meet basic requirements are returned without an application number. Reasons for return include unclear application type, missing applicant details, non-Korean language, missing trademark specimen, or unrepresented applicants without a Korean address. Once basic requirements are met, KIPO assigns an application number and examines formality compliance. Missing information triggers a notice of amendment; non-compliance results in nullification.
Trademark applications are examined in filing order. Under Article 53(2) of the Trademark Act, KIPO may prioritize certain applications. Examination generally takes about five months from filing.
To be registered, a trademark must:
If no grounds for rejection are found, or objections are overcome, the application is published in the "Trademark Publication Gazette."
After publication, any person can file an opposition within two months. A notice of opposition must include a brief statement of grounds, which can be supplemented within the following month.
If no opposition is sustained, the application proceeds to registration. The applicant must pay the registration fee within a specified period to finalize the trademark's registration.
Upon decision to grant, the applicant must register the trademark by paying the registration fee within the designated period. Failure to pay results in abandonment.
Trademark protection lasts 10 years from the registration date and can be renewed every 10 years by filing a renewal application with KIPO. Once filed, the renewal is effective from the original expiration date.
Trademark infringement can be addressed through civil injunctions, damages, credit recovery claims, and criminal prosecution. These actions are treated as civil or criminal cases, outside the patent court's jurisdiction.
If grounds for rejection exist, KIPO issues a written notice, allowing the applicant to respond within a specified period.
Applicants can submit arguments or amendments to address rejection grounds. Amendments must be within the scope of the original application.
If rejections persist after responses, KIPO issues a decision of refusal.
Applicants can appeal refusals to the IPTAB within 30 days of receiving the decision.
The Patent Court handles appeals against IPTAB decisions and trial cancellations.
Final appeals against Patent Court decisions can be made to the Supreme Court of Korea, citing legal or regulatory violations.
The Korean trademark system is thorough and well-defined, ensuring robust protection for registered trademarks. foreigner must understand these processes to effectively navigate the Korean IP landscape and secure trademark rights for their clients.
