Introduction

The South Korean Intellectual Property Office (KIPO) recently conducted an investigation of South Korean company Mother Love Inc for violating the Unfair Competition Prevention and Trade Secret Protection Act. The KIPO issued a corrective order requiring that Mother Love Inc cease the manufacture and sale of its home meal replacement product (shown below next to an earlier competing product from Egnis Inc).

Decision

The KIPO determined that the appearance of the bottle, the label design attached to the bottle, the nature and colour of the products (ie, pastel coloured powder) and the overall appearance were substantially identical to Egnis's product, in violation of the 'dead copy' provision under the Unfair Competition Prevention and Trade Secret Protection Act. The provision prohibits the act of selling, leasing, displaying for sale or lease, importing or exporting a product which imitates the appearance of another's product (ie, the shape, pattern, colour or a combination of such attributes), provided that:

  • the imitation product is sold, leased, displayed for sale or lease, imported or exported within three years of the date that the original product was first created; and
  • the product appearance is not commonly used for the goods.

Comment

This case is unusual because the KIPO's investigation was not due to a filed complaint, but was rather an exercise of its powers under the Unfair Competition Prevention and Trade Secret Protection Act to investigate violations under its own initiative. Recent amendments to the act (effective July 18 2017) expanded the KIPO's enforcement authority to include dead copy violations and the corrective order against Mother Love Inc was the first time that the KIPO had issued a corrective order to enforce the dead copy provision. Failure to comply with the corrective order will likely result in a referral of the matter to the police or the Supreme Prosecutors' Office.

Under the amendments, violators of the provision are now subject to criminal penalties ranging from imprisonment for up to three years or a fine up to approximately $24,000.

The KIPO believes that its proactive measures will particularly benefit small companies whose creative ideas are frequently copied but which lack sufficient resources to seek effective legal remedies. The KIPO has recently expanded its resources for conducting investigations and as of this month, begun accepting infringement reports from members of the public.

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For further information on this topic please contact Sung-Nam Kim or ?Angela Kim at Kim & Chang by telephone (+82 2 2122 3900) or email (snkim@kimchang.com or angela.kim@kimchang.com). The Kim & Chang website can be accessed at www.kimchang.com.