Government Agency

The Purpose of the Trademark Law

The Term of a Trademark Right
The term of a trademark right is 10 years from the date of the registration of the establishment of the trademark right. The term of a trademark right may be renewed by every 10 years upon appealing for registration of renewal.




Definition

Trademark
" Trademark” is defined as any of the following which is used on goods related to the business of a person who produces, processes, certifies, or sells such goods in the course of trade for the purpose of distinguishing such goods from the goods of others.

A sign, a character, a figure, a three-dimensional shape or any combination thereof
Any combination of color with any items described above

Service mark
"Service mark" means a mark which is used by a person who carries on a service business for the purpose of distinguishing such business from those of others.

Collective mark
“Collective mark" means a mark intended to be used with respect to goods or services related to the business of members who are controlled by a juristic person founded by and composed of persons who are in the same line of business and/or who are closely associated therein.

Business emblem
"Business emblem" means a mark which is used by a person who carries on a nonprofit business for the purpose of indicating his business.

Unregistrable Trademarks

A trademark registration may not be obtained for a trademark falling under any of the
following subparagraphs:

trademarks which are identical or similar to the national flag, the national emblem, colors, medals,
    decorations or badges of the Republic of Korea;
trademarks which falsely indicate a connection with any nation, race, ethnic group, public
    organization, religion or famous deceased person;
trademarks which are contrary to public order or morality;
trademarks comprising a mark which is identical or similar to a medal, certificate of merit or
    decoration awarded at an exhibition held by or with the authorization of the Government of the
    Republic of Korea or at an exhibition held by or with the authorization of the government of a
    foreign country; however, this provision shall not apply where the person who has been awarded
    a medal, certificate of merit or decoration has used it as a part of his trademark on the same
    goods for which such medal, certificate of merit or decoration was awarded at the exhibition;
trademarks containing the name, title or trade name, portrait, signature, seal, pseudonym,
    professional name or pen name of well-known persons, or an abbreviation thereof; however,
    this provision shall not apply where the consent of the person concerned has been obtained;
trademarks identical or similar to another person's registered trademark whose registration was
    applied for prior to the filing date of the trademark application concerned and which are to be
    used in connection with goods identical or similar to the designated goods thereof;
trademarks identical or similar to another person's registered trademark, where one year has not
    elapsed since the date of extinguishment of the trademark right (in the case of a trial decision
    invalidating a trademark registration, the date when the trial decision became final and
    conclusive) and which are used in connection with goods identical or similar to the designated
    goods thereof;
trademarks which are identical or similar to another person's trademark which is well-known
    among consumers as indicating the goods of that other person, and which are used on goods
    that are identical or similar to such goods;
trademarks which are liable to cause confusion as to goods or businesses of another person
    which are recognized as famous among consumers;
trademarks which are deceptive or liable to mislead consumers as to the quality of the goods;
trademarks which are identical or similar to a trademark which is well-known as indicating the
    goods of a particular person by consumers in or outside of the Republic of Korea, and which are
    used for unjustifiable purposes of obtaining unjust profits or inflicting harm on the particular
    person, etc.;
trademarks consisting solely of three-dimensional shapes which are essential to secure the
    functioning of the goods to be registered or their packaging;
trademarks consisting of geographical indications or including such indications with regard to the
    origin of wines and spirits in a member of the World Trade Organization, and which are used in
    connection with wines, spirits, or other similar goods thereto.

Flow Chart of The Trademark Application Process

(1) First-to-File Rule
Where two or more applications for trademark registration relating to identical or similar trademarks which are to be used on identical or similar goods are filed on different dates, only the applicant who filed the application with the earlier filing date may obtain a trademark registration for the trademark.

(2) Registration of Trademark Administrator
To apply for a trademark in Korea, one must file application documents as prescribed by the Trademark Law. Persons having neither domicile nor residence in Korea (or a business establishment in the case of a legal entity) must file an application through a trademark administrator having a domicile or residence in Korea.

(3) Requirements for filing trademark application
A person who uses or intends to use a mark, including a trademark, service mark, collective mark and business emblem, requires the followings.
a. Name, address and nationality of the applicant;
b. Specimen of the mark;
c. Original executed Power of Attorney signed by on applicant or a representative if the applicant is a legal entity.
d. A specification of the goods/services
e. A certified copy of the priority document, if claimed.

Examination by Examiner

Korean Intellectual Property Office shall have applications for trademark registration and oppositions to trademark registration examined by an examiner.

Decision of Rejection of Trademark Registration and Notification of reasons for Rejection

An examiner shall, when he intends to make a decision of rejection of trademark registration, notify the applicant of the reasons for rejection and give the applicant an opportunity to submit a written argument, designating a time limit therefor.
The applicant must submit the amendment or response within the designated period to overcome the reasons for rejection. The examiner shall make a decision that a trademark registration application is to be rejected when the applicant could not overcome the reasons for rejection.

Publication of Application

Where an examiner finds no reasons for rejecting an application for trademark registration, he shall render a decision to publish the application. After an application for trademark registration is published, the applicant may give written warning to a person who uses an identical or similar trademark.

Opposition to Trademark Registration

Within 30 days from the date of publication of an application, any person may raise an opposition to the grant of a trademark registration with the Korean Intellectual Property Office on the ground of same reasons for rejecting an application for trademark registration.

Decision for Trademark Registration

Where an examiner finds no reasons for rejecting an application for trademark registration, the examiner shall render a decision for trademark registration.

Payment of Registration fee

Any person who desires to obtain the registration of the establishment of a trademark right, the supplementary registration of designated goods, or the registration for renewal of term of a trademark right, shall pay registration fees. Upon request, the Korean Intellectual Property Office may extend the period for paying the registration fees by a period not exceeding thirty days.

Effects of Trademark Right

The owner of a trademark right has an exclusive right to use the registered trademark in connection with the designated goods. However, where the trademark right is the subject of an exclusive license, this provision shall not apply to the extent that the exclusive licensee has an exclusive right to use the registered trademark.

Renewal of Trademark Right

The term of a trademark right may be renewed by every 10 years upon application for registration of renewal.
Application for Registration of Renewal of Term of Trademark Right
Any person who desires registration of renewal of term of a trademark right shall file an application for registration of renewal of term of a trademark right with the Korean Intellectual Property Office. An application for registration of renewal of term of a trademark right shall be filed within one year prior to the date of expiration of the term of a trademark right; however, any person who fails to file an application for registration of renewal of term of a trademark right within said period may file such application within 6 months after expiration of the term of the trademark right. Where a trademark right is jointly owned, all the joint owners shall jointly file the application for registration of renewal of term of the trademark right.

License

The owner of a trademark right may grant an exclusive (nonexclusive) license with respect to his trademark right to another person. The exclusive (nonexclusive) licensee who has been granted an exclusive (nonexclusive) license will have an exclusive (nonexclusive) right to use the registered trademark in connection with the designated goods within the scope of the license granted.

Exclusive License
The owner of a trademark right may grant an exclusive license with respect to his trademark right to another person. An exclusive license shall not be granted for a business emblem right or collective mark right. The exclusive licensee who has been granted an exclusive license shall have an exclusive right to use the registered trademark in connection with the designated goods within the scope of the license granted. The exclusive licensee shall apply his name or title to the licensed goods. An exclusive licensee may not transfer the exclusive license without the consent of the owner of the trademark right except in case of inheritance or other general succession. An exclusive licensee may not establish a pledge on the license nor grant a nonexclusive license without the consent of the owner of the trademark right.

Non-Exclusive License
The owner of a trademark right may grant a nonexclusive license with respect to his trademark right to another person. The nonexclusive licensee who has been granted a nonexclusive license shall have the right to use the registered trademark in connection with the designated goods within the scope of the license granted. A nonexclusive license shall not be transferred without the consent of the owner of the trademark right (or the owner of the trademark right and the exclusive licensee in the case of a nonexclusive license based on an exclusive license) except in the case of inheritance or other general succession. A nonexclusive licensee shall not establish a pledge on the license without the consent of the owner of the trademark right (or the owner of the trademark right and the exclusive licensee in the case of a nonexclusive license based on an exclusive license).

The owner of a trademark right or an exclusive licensee may request a person who has infringed or is likely to infringe his trademark right or exclusive license to cease or desist from the infringement.

Damages

Where the owner of a trademark right or an exclusive licensee claims, from a person who has intentionally or negligently infringed the trademark right or exclusive license, compensation for damage caused to him by the infringement.

Restoration of Business Reputation of Owner of Trademark Right

Upon request of the owner of a trademark right or the exclusive licensee, a court may order a person who has injured the business reputation of the owner of the trademark right or the exclusive licensee by intentional or negligent infringement of the trademark right or the exclusive license to take necessary measures to recover the business reputation of the owner of the trademark right or the exclusive licensee.

Criminal Penalties

Any person who infringes a trademark right or an exclusive license shall be subject to imprisonment for not more than seven years or by a fine not exceeding one hundred million Won.