The South Korean Intellectual Property Office recently amended the Design Examination Guidelines, effective as of January 1 2017. The most notable of the amendments is that the creativity threshold for design registrations has been substantially lowered.
Previously, examiners often found it easy to reject design applications without citing any prior art if the design was composed of well-known shapes or patterns, such as basic two-dimensional and three-dimensional geometric shapes. As a result, minimalist designs (which are designs intentionally stripped of superfluous elements) usually have been held to be unregistrable under the Design Protection Act and therefore not protectable.
However, the amended guidelines make clear that if the product design is composed in a manner that has never been seen before in the relevant field, it can be deemed as creative, regardless of whether it is composed of basic shapes or patterns. The amended guidelines also require examiners to cite supporting evidence when refusing a design application due to lack of creativity, to prove that the method of creation or the way of expressing the design is common in the field to which the design belongs. Only overly obvious methods of creation or manners of expression are now exempt from the evidence requirement, such as a generic car design for a car toy. It is expected that going forward, registration will be available for substantially more designs as a result of these amendments.
For further information on this topic please contact Sung-Nam Kim or Angela Kim at Kim & Chang by telephone (+822 3703 1114) or email ([email protected] or [email protected]). The Kim & Chang website can be accessed at www.kimchang.com.