Legal framework

Domestic law

What is the primary legislation governing trademarks in your jurisdiction?

The Korean Trademark Act is the main legislation governing trademark applications, prosecutions and registrations in Korea.

International law

Which international trademark agreements has your jurisdiction signed?

As of 2004, the Madrid Protocol is also relevant to proceedings involving international applications. Unregistered trademarks are protected under the Korean Unfair Competition Prevention Law.

Regulators

Which government bodies regulate trademark law?

The relevant authority is the Korean Intellectual Property Office (KIPO).

Registration and use

Ownership of marks

Who may apply for registration?

Any person or corporation who uses or intends to use a trademark in the Republic of Korea may file an application to register such a mark and may acquire exclusive rights therein. Actual use of the mark is not required to register a mark.

Scope of trademark

What may and may not be protected and registered as a trademark?

A trademark is defined in the Korean Trademark Act as any of the following, used on or in connection with goods or services for the purpose of distinguishing them from the goods or services of others:

  • a sign, letter, figure, three-dimensional shape or combination thereof, and a combination of colours used with respect thereto;
  • any colour that is not combined with other items, combination of colours, holograms, motion or other item that can be visually recognised (effective from 15 March 2012); and
  • sounds and scents that are capable of visual representation by means of symbols, characters, figurative designs, etc (effective from 15 March 2012).

Also, under the amended Korean Trademark Act, effective from 15 March 2012, certification marks, which are used to certify a particular quality, origin, method of production or other characteristic of goods and services, can now be registered.

A trademark application will not be registered, if the trademarks are:

  • generic marks;
  • marks whose components are commonly used to describe the designated goods;
  • marks that are merely descriptive of the goods and services as associated therewith;
  • marks consisting only of a well-known geographical name or abbreviation thereof, or of a map;
  • trademarks consisting only of a commonly used person’s name or surname;
  • trademarks deemed to be composed only of ‘simple and commonplace’ components; and
  • trademarks that otherwise might not be understood by consumers as indicating the goods of a certain owner.
Unregistered trademarks

Can trademark rights be established without registration?

There are several ways to establish the trademark rights without registration as discussed below:

Korean Trademark ActProtection of well-known trademarks that are not registered in Korea

Korea is a first-to-file or registration-based jurisdiction. Therefore, in principle, the registrant of a mark enjoys the exclusive right in such mark against all later applicants for the same mark in respect of the same or similar goods and services. However, if an unregistered trademark is widely used in Korea or elsewhere to the extent that goodwill is created therein and the mark has become well known in Korea, any mark that is identical or confusingly similar to such a well-known mark should not be granted registration, and is vulnerable to invalidation if it is registered.

Continued use on the basis of prior use

If a mark that has been used without registration and has become well-known in Korea conflicts with a prior-registered trademark, the owner of the unregistered mark can obtain the right to continue to use such mark in the case where the owner has used the unregistered mark without engaging in any act of unfair competition before the other party’s application was filed.

Unfair Competition Prevention and Trade Secret Protection Act (UCPA)

The UCPA provides additional means by which to protect a well-known but unregistered trademark from those seeking to misappropriate the goodwill associated therewith.

Famous foreign trademarks

Is a famous foreign trademark afforded protection even if not used domestically? If so, must the foreign trademark be famous domestically? What proof is required? What protection is provided?

A famous foreign trademark is afforded protection even if it is not used domestically. In particular, the owner of a trademark that is deemed to be famous only in a foreign country can prevent a third party from registering the identical or confusingly similar mark if the third party’s application is filed in bad faith. If a foreign trademark is famous domestically, its owner can prevent registration of the identical or confusingly similar mark by a third party and prevent others from using the identical or confusingly similar trademarks.

The benefits of registration

What are the benefits of registration?

Upon registration of a trademark, the owner has the exclusive right to use the mark on or in connection with the designated goods and services. Also, the trademark owner may seek civil remedies (injunctions, claim for damages and recovery of reputation, etc) and criminal remedies against infringers.

Filing procedure and documentation

What documentation is needed to file a trademark application? What rules govern the representation of the mark in the application? Is electronic filing available? Are trademark searches available or required before filing? If so, what procedures and fees apply?

If local counsel is used to file a trademark application, a power of attorney is required. No notarisation or legalisation is required. The applicant must submit a specimen of the trademark as it will be used. If the mark cannot be clearly and completely presented, a description or a sample of the mark as used can be filed to precisely illustrate the scope of rights sought and to facilitate third-party recognition of the mark and the scope of rights. Electronic filing is available and trademark searches are not required before filing.

Registration time frame and cost

How long does it typically take, and how much does it typically cost, to obtain a trademark registration? When does registration formally come into effect? What circumstances would increase the estimated time and cost of filing a trademark application and receiving a registration?

Time frame

It generally takes eight to 10 months from the filing of an application with KIPO until a registration is granted, assuming that no preliminary rejection was issued by KIPO and no opposition was filed by a third party. Thus, it will take longer if a preliminary rejection was issued or an opposition was filed.

Applications can receive expedited examination upon request if it is proved that the applicant is already using or has a bona fide intent to use the trademark. If preferential examination of the application is granted, the application will be examined within one to two weeks of the date of grant and the results of whether the mark will be granted registration will be available within two months thereof.

Official fees

Assuming that no preliminary rejection was issued, official fees payable from the filing to registration of a trademark application are approximately 280,000 South Korean won. If the number of designated goods and services exceeds 20 items in any single international class, additional official fees of approximately 2,000 South Korean won will be charged per item in excess of 20, both when filing an application and again upon registration in respect of applications filed on or after 1 April 2012. Official fees of requesting preferential examination are approximately 160,000 South Korean won.

Attorneys’ fees

Attorneys’ fees are different in each law firm. Assuming that no preliminary rejection was issued, attorneys’ fees from filing a trademark application through to registration in one class are approximately US$700 to US$900. Attorneys’ fees increase when responding to a rejection or an opposition.

Classification system

What classification system is followed, and how does this system differ from the International Classification System as to the goods and services that can be claimed? Are multi-class applications available and what are the estimated cost savings?

The Nice Agreement on the International Classification of Goods and Services (the tenth edition) has been adopted by KIPO. Also, multi-class applications are available in Korea. Many law firms in Korea offer a discount on attorneys’ fees when filing multi-class applications. However, there is no discount on official fees when filing multi-class applications.

Examination procedure

What procedure does the trademark office follow when determining whether to grant a registration? Are applications examined for potential conflicts with other trademarks? Are letters of consent accepted to overcome an objection based on a third-party mark? May applicants respond to rejections by the trademark office?

Once all the formal filing requirements are satisfied, the examiner will then examine an application to determine whether the mark satisfies the substantive requirements for registration. Upon examination, if the examiner does not identify any grounds for rejecting the trademark (or if any initial rejection is overcome by arguments or amendments), the examiner will approve the trademark for publication in the Korean Trademark Gazette. Applications are examined for potential conflicts with other trademarks and applicants can respond to rejections within the predetermined period.

Use of a trademark and registration

Does use of a trademark or service mark have to be claimed before registration is granted or issued? Does proof of use have to be submitted? Are foreign registrations granted any rights of priority? If registration is granted without use, is there a time by which use must begin either to maintain the registration or to defeat a third-party challenge on grounds of non-use?

Since Korea is a first-to-file jurisdiction, use of a trademark or service mark does not have to be claimed before registration is granted or issued. Therefore, registration is granted even without use and no proof of use is required in principle. However, the Korean Trademark Act became effective from 15 March 2012 whereby an examiner may require evidence of prior use, proof of intent to use, or a declaration from an applicant regarding the extent of its intent to use a mark in Korea if the application is filed in five or more international classes, or if numerous unrelated goods or services are claimed in a single application.

Further, the mark can be renewed perpetually without any proof of use. However, if a registered mark has not been used by the owner or a licensee thereof on or in connection with the designated goods in Korea for a period in excess of three years without justifiable reason immediately prior to the date on which a cancellation action is instituted, it is vulnerable to cancellation.

Markings

What words or symbols can be used to indicate trademark use or registration? Is marking mandatory? What are the benefits of using and the risks of not using such words or symbols?

The Korean Trademark Act provides that a trademark owner can use the ® registration symbol if the mark is registered in Korea. It is permissible to use the ™ symbol as a trademark indication regardless of whether the mark is registered or the application is pending.

Under the Korean Trademark Act, a person who infringes upon another person’s trademark rights wherein it is marked as a registered mark is deemed to have intentionally engaged in trademark infringement. Accordingly, if the owner of a registered mark indicates that the mark is registered in Korea, it would not need to prove that a person who infringed upon its trademark rights was intentionally engaged in trademark infringement.

The Korean Trademark Act also provides that if the ® registration symbol is used in connection with a mark that is not registered in Korea, it is deemed to be false representation. Any person found to be in violation of this provision is subject to a fine of up to 20 million South Korean won or imprisonment of up to three years.

Appealing a denied application

Is there an appeal process if the application is denied?

The applicant can file an appeal with the Intellectual Property Tribunal Appeal Board (IPTAB) of KIPO within 30 days from the date of receiving a notice of final refusal. The IPTAB panel is comprised of three experienced examiners, as opposed to the primary examination stage, wherein the examination of the mark is performed by a single examiner. At the next level, the applicant can appeal to the Patent Court seeking reversal of the intellectual property tribunal decision. Finally, the decision of the Patent Court may be appealed to the Supreme Court.

Third-party opposition

Are applications published for opposition? May a third party oppose an application prior to registration, or seek cancellation of a trademark or service mark after registration? What are the primary bases of such challenges, and what are the procedures? May a brand owner oppose a bad-faith application for its mark in a jurisdiction in which it does not have protection? What is the typical range of costs associated with a third-party opposition or cancellation proceeding?

After the substantive examination, KIPO will either accept the mark for publication or issue an office action refusing the mark. If KIPO accepts the mark, it will then be published for opposition in the Korean Trademark Gazette for two months. Once a mark is published in the Trademark Gazette, anyone may file an opposition against the registration thereof within two months. Only a notice of opposition and a brief statement of the grounds for opposition must be filed during the notice period. The opponent thereafter may amend and supplement the grounds for the opposition for a period of 30 days, which can be extended for an additional two months.

The primary bases of opposition include the following:

  • a mark that is merely descriptive of the goods and services as associated therewith;
  • a mark deemed to be composed only of ‘simple and commonplace’ components;
  • a mark that is identical or confusingly similar to a prior-registered mark;
  • a mark that is identical or similar to another trademark that is well-known among consumers as indicating the goods of that other person or goods similar thereto;
  • a mark that is likely to mislead or deceive consumers as to the nature or quality of the goods; and
  • a mark that is identical or similar to another mark that is well known in or outside of Korea as indicating goods that is used for unlawful purposes, such as obtaining unjust profits or inflicting harm on the owner of the other mark.
Duration and maintenance of registration

How long does a registration remain in effect and what is required to maintain a registration? Is use of the trademark required for its maintenance? If so, what proof of use is required?

Trademarks are registered in Korea for an initial period of 10 years and can be renewed perpetually without any proof of use. At present, there is no substantive examination of renewal applications. Thus, it takes only approximately two to three months to complete a renewal procedure.

Surrender

What is the procedure for surrendering a trademark registration?

A trademark right may be surrendered by submitting:

  • a deed of abandonment signed by the registrant; or
  • a notarised corporate or individual nationality certificate of the registrant with KIPO.
Related IP rights

Can trademarks be protected under other IP rights (eg, copyright, designs)?

Trademarks can be protected under designs and copyrights if they can meet the requirements of the Design Protection Act and the Copyright Act.

Trademarks online and domain names

What regime governs the protection of trademarks online and domain names?

The relevant authority for the protection of trademarks online and domain names is the Korean Court.

Licensing and assignment

Licences

May a licence be recorded against a mark in the jurisdiction? How? Are there any benefits to doing so or detriments to not doing so? What provisions are typically included in a licensing agreement (eg, quality control clauses)?

A licence may be recorded against a mark. In particular, the right to use a registered trademark can be granted pursuant to either an exclusive or a non-exclusive licence. The amended Korean Trademark Act, which became effective on 15 March 2012, eliminates the requirement that exclusive trademark licences be recorded with KIPO in order to be valid and fully enforceable. Previously, for an exclusive licensee to use the registered trademark, to grant a sub-licence to another party and to claim trademark infringement, an exclusive licence had to be registered. With the amendment, however, it is possible for the trademark owner to grant an exclusive licence of the trademark without recording it in the Trademark Register. The exclusive licensee can also claim trademark infringement and seek damages even if its licence has not been recorded.

Assignment

What can be assigned?

Trademark applications and registrations with or without goodwill, and either with or without other business assets can be assigned by submitting the required documents to the KIPO. In this regard, trademark applications and registrations can be assigned in respect of all or some of the goods and services designated therein. No other business assets have to be assigned to make it a valid transaction.

Assignment documentation

What documents are required for assignment and what form must they take? What procedures apply?

In order to record an assignment with KIPO, the following documents are required:

  • a declaration or deed of assignment signed by the assignor;
  • a notarised corporate nationality certificate or notarised certificate of nationality from the assignor; and
  • powers of attorney from both the assignor and assignee.
Validity of assignment

Must the assignment be recorded for purposes of its validity?

The assignment must be recorded for purposes of its validity. Namely, the change in ownership will take effect upon its entry in the Korean Trademark Register.

Security interests

Are security interests recognised and what form must they take? Must the security interest be recorded for purposes of its validity or enforceability?

A security interest is a property interest created over assets by agreement. Registration of the security interest is a necessity for such security interest to be valid and enforceable. For the purpose of creating a security interest, a deed of the interest needs to be filed with the KIPO.

Enforcement

Trademark enforcement proceedings

What types of legal or administrative proceedings are available to enforce the rights of a trademark owner against an alleged infringer or dilutive use of a mark, apart from previously discussed opposition and cancellation actions? Are there specialised courts or other tribunals? Is there any provision in the criminal law regarding trademark infringement or an equivalent offence?

Where infringement occurs, the owner of the registered trademark or its exclusive licensee may enforce its rights by filing a trademark infringement suit in a district court. Alternative dispute resolution before certain private entities, such as the Korean Intellectual Property Arbitration Centre, may be considered. The remedies for trademark infringement available under the Korean Trademark Act are outlined below.

Civil proceedings

The plaintiff may seek an injunction against an infringing party (or a party that is highly likely to infringe the trademark right) that acts with or without negligence or wilfulness. Together with an injunction, the plaintiff may seek an order for destruction of the infringing goods and removal of the facilities used to commit the infringement, as well as other measures necessary to prevent the infringement. The plaintiff may also seek a preliminary injunction to prevent infringement. To obtain a preliminary injunction, the plaintiff must show irreparable harm because of the infringement; the court sometimes requires that a bond be posted. In the case of negligent or intentional infringement, compensatory damages are also available. Under the Korean Trademark Act, an infringer’s negligence is presumed.

Criminal penalties

Intentional trademark infringements are subject to criminal penalties of not more than seven years or a fine of not more than 100 million South Korean won.

There is neither a specialised court for trademark cases in enforcement cases nor specific procedural provisions related to trademark enforcement in criminal law. In addition, as an administrative proceeding, it is possible for a trademark owner to file an application for custom seizure. However, the substantial requirements in criminal and civil actions on the basis of trademark infringement shall follow the Korean Trademark Act. The procedural requirements in a civil action shall follow the Korean Civil Act. Such requirements in a criminal action shall follow the Korean Criminal Act.

Procedural format and timing

What is the format of the infringement proceeding?

Discovery, as in the US legal system, is not allowed in Korea. During legal proceedings, a party to an action may request that the court order submission of documents to the person who possesses the documents in which case the court may order document production. The collection and examination of evidence could be made if the parties to the case request appraisal or on-the-spot inspection thereof and thereafter the courts permit it. If necessary, live testimony can be used only in respect of examination of trademark infringement disputes has been used. As to experts, the court sometimes accepts opinion or affidavits, or both, when they want to determine the important facts. It entirely depends on the judge’s discretion as to the adoption of live testimony or such affidavits.

As for criminal proceedings, a trademark owner may file a criminal complaint with the police or the Prosecutor’s Office. Unless the relevant case is complicated or socially influential, the Prosecutor’s Office orders an investigation of the case to be conducted by the police. After an investigation, the police file a report with their opinion on whether to bring an indictment against the accused to the Prosecutor’s Office, which thereafter will decide whether to commence prosecution in court. The trademark owner who filed a criminal complaint is informed of whether the accused infringer was indicted or not. However, if the accused infringer was not indicted, the trademark owner would need to separately file a petition to the Prosecutor’s Office in order to obtain the detailed grounds for non-indictment. The trademark owner is entitled to file an appeal of the Prosecutor’s Office’s decision to not indict the accused infringer.

Burden of proof

What is the burden of proof to establish infringement or dilution?

In an action for damages such as to establish infringement or dilution, a trademark owner has the burden of proving the basis and the amount of damages. The Korean Trademark Act does not recognise punitive damages.

Standing

Who may seek a remedy for an alleged trademark violation and under what conditions? Who has standing to bring a criminal complaint?

The trademark owner or its exclusive licensee, or both, may obtain injunctions against persons using any mark that is identical or confusingly similar to the registered mark. A trademark owner is also entitled to monetary damages from anyone who infringes upon its mark in respect of identical or similar goods.

Under the Korean Trademark Act, it is possible for the trademark owner to grant an exclusive licence of the trademark without recording it in the Trademark Register. Thus, the exclusive licensee can also claim trademark infringement and seek damages even if its licence has not been recorded. The standing to bring a criminal complaint lies with the trademark owner or its exclusive licensee, or both, with the police officers or the public prosecutors. However, only the public prosecutor has standing to bring a criminal complaint to the court.

Border enforcement and foreign activities

What border enforcement measures are available to halt the import and export of infringing goods? Can activities that take place outside the country of registration support a charge of infringement or dilution?

Once a trademark is registered in Korea, the owner (or licensee) may register such mark with the Korea Customs Service (KCS) to enable the KCS to locate infringing goods. When suspected goods are identified by the KCS, it will notify the importer of the suspected goods and the trademark owner, both of whom may submit evidence and statements regarding such goods within 10 days of receiving notification.

Activities that take place outside Korea cannot support a legal charge of infringement or dilution in Korea because the scope of protection of a trademark is limited to the country where it has been registered.

However, activities that took place in foreign countries can sometimes be served as a basis in determining findings of facts. For example:

  • if the mark used in such activities was acknowledged to be well-known in foreign countries;
  • there has been a business relationship between the owner of the mark and the infringer; or
  • the infringer had an intention to infringe upon the rights in the trademark, the Korean court could determine the foregoing circumstances as evidence of trademark infringement.

Border enforcement mechanisms will sometimes be of help to support a charge of infringement or dilution. If Korean customs decides that the infringement of a Korean trademark is obvious, the Korean customs authorities can seize any goods upon import or export.

Discovery

What discovery or disclosure devices are permitted for obtaining evidence from an adverse party, from third parties, or from parties outside the country?

Under the Korean Civil Procedure Act, upon receipt of an order for document production, one is obliged to comply with the order in any of the following cases:

  • when a party to a lawsuit possesses documents cited in the lawsuit;
  • when a party requesting documents seeks the review or delivery of such documents; or
  • when the requested documents were prepared for the advantage over the requesting party or discloses a legal relationship between the requesting party and the requested party (eg, commercial books and agreements).

If the requested party does not comply with the order, the Korean courts could acknowledge the requesting party’s claims to be true and order a fine, in which case the requested party would be entitled to appeal the court’s order.

Timing

What is the typical time frame for an infringement or dilution, or related action, at the preliminary injunction and trial levels, and on appeal?

The average period of preliminary injunction from complaint to a decision is approximately four to six months, depending on the complexity of the issues presented by the case. It generally takes six months to one year to obtain a decision in a permanent injunction. As for damages actions, the average time period from complaint to first instance district court judgment is 10 to 12 months.

Limitation period

What is the limitation period for filing an infringement action?

An injunction may be sought at any time if an infringement or threat of infringement is ongoing. However, an action for damages must be instituted within three years of the infringement actually occurring or the owner of the trademark right becoming aware of such infringement.

Litigation costs

What is the typical range of costs associated with an infringement or dilution action, including trial preparation, trial and appeal?

The value of the subject matter in litigation is typically 100 million South Korean won. As for attorneys’ fees, there is no legally binding standard in Korea. Usually, attorneys representing foreign clients charge an hourly rate of approximately US$300 to US$600. Under Korean law, a plaintiff can recover the full amount of the fee paid to the court and a part of the attorneys’ fees, which is usually up to 10 per cent of the amount of the damages awarded as compensation for infringement. The Seoul High Court ordered that a person who sold counterfeit Louis Vuitton bags in Korea pay 400 million South Korean won as compensation for damages. In view of this decision, the Seoul High Court concluded that the infringer had bad-faith intent in manufacturing a considerably large amount of counterfeit bags by leasing a large factory of approximately 661m2.

Appeals

What avenues of appeal are available?

The complaint of a trial (not preliminary injunction proceeding) is filed with the district court. A party that is not satisfied with the district court’s decision may appeal to the competent High Court, whose decision may subsequently be appealed to the Supreme Court on limited grounds. The Supreme Court will hear appeals from a High Court on grounds of error in interpretation and other violations of the constitution.

Defences

What defences are available to a charge of infringement or dilution, or any related action?

The alleged infringer may argue that:

  • the compared marks are not identical or confusingly similar;
  • there is no similarity in compared goods or services;
  • there is no likelihood of confusion;
  • it used the mark on the basis of a licence agreement;
  • the compared marks are both registered by KIPO and it used the mark on the basis of its trademark registration;
  • the owner of the unregistered mark that was well known in Korea used the mark without engaging in any act of unfair competition before the other party’s application was filed;
  • the mark was used by parallel importation;
  • the other party’s registration is invalid; or
  • the term is generic, etc.

In this regard, under the Korean Trademark Act, even if it is not well known in Korea, a party who has been using its trade name as a trademark may continue to use such trademark if it has previously done so without engaging in any act of unfair competition before the other party’s application was filed. In addition to a defence before the courts, an alleged infringer may file a petition for invalidation or cancellation of registration as a separate proceeding before the IPTAB as a counter action.

Remedies

What remedies are available to a successful party in an action for infringement or dilution, etc? What criminal remedies exist?

Civil remediesInjunctions

The owner of a trademark may go to court to obtain an injunction against any person who is infringing or is likely to infringe its trademark, and require such person to cease and desist any infringement. Below are specific examples of civil remedies that the trademark owner can seek:

  • the destruction of the infringing goods;
  • the destruction of the equipment used to manufacture the infringing items; and
  • any other measures necessary to prevent future infringement.
Money damages

In a trademark infringement action for damages, the plaintiff has the burden of proving and quantifying its damages. Under the Korean Trademark Act, a trademark owner may enter a claim for actual damages, can seek the forfeiture of the profits derived from the infringing activities or seek payment of a royalty that the owner would normally be entitled to receive for use of its registered trademark. Alternatively, the trademark owner can claim damages in an amount equal to the total sales of the infringing goods multiplied by the profit per unit of such goods.

Statutory damages

The Korean Trademark Act adopted a system whereby a trademark owner can claim statutory damages against an infringing party of up to 50 million South Korean won instead of claiming on the basis of actual quantifiable damages.

However, the statutory damages option is only available in cases where the infringing mark is identical or virtually indistinguishable from the injured party’s registered mark and used in connection with goods that are identical or virtually indistinguishable from the goods associated with the registered mark. This system will alleviate the often-difficult exercise of having to prove and quantify actual damages. When the statutory damages option is available, the trademark owner can still elect to seek actual damages instead.

Recovery of reputation

Upon request, the court may in lieu of, or in addition to, damages, order a person who has intentionally or negligently injured the business reputation of a trademark owner or its exclusive licensee on the basis of an infringement, to take necessary measures to restore the business reputation of the owner or its exclusive licensee.

Criminal proceedings

Under the Korean Trademark Act, any person who intentionally infringes a trademark can be imprisoned for not more than seven years or fined an amount of not more than 100 million South Korean won. Any mark or packaging for goods that infringes upon a registered trademark and any machinery used in the production of such goods may be confiscated. However, if it is possible to remove the infringing mark without destroying the goods, the goods can avoid confiscation.

ADR

Are ADR techniques available, commonly used and enforceable? What are the benefits and risks?

The Korean Commercial Arbitration Board and Korean Intellectual Property Arbitration Centre are active institutions that administer arbitration proceedings in respect of disputes related to intellectual property. The arbitration decision has the same effects to the conflicting parties as a decision issued by the Korean courts and, thus, has binding power as a final decision to the parties. It typically takes two to three years to receive a decision from the Korean courts. However, it only takes approximately five months in cases of national arbitration proceedings and approximately seven months in cases of international arbitration proceedings. If both parties agree to proceed with the arbitration, the relevant dispute can be resolved in two to three months after the arbitration is initiated. However, since the parties usually have different arguments regarding intellectual property infringement issues, most of the cases go to trial rather than arbitration proceedings. The additional risk of arbitration is that an arbitration decision cannot be appealed.

Update and trends

Key developments of the past year

Are there any emerging trends, notable court rulings, or hot topics in the law of trademark infringement or dilution in your jurisdiction?

Key developments of the past year39 Are there any emerging trends, notable court rulings, or hot topics in the law of trademark infringement or dilution in your jurisdiction?

In June 2018, an international tribunal was established in the Korean courts overseeing first or second instance cases of patent-related actions, where parties may submit briefs and evidences and make oral arguments in a foreign language.

According to the Court Organization Act, the Korean district courts, which hear first instance cases of infringement actions, and the Patent Court, which hears second instance cases, such as appeals in infringement actions or appeals against IPTAB decisions, will each have an international tribunal to hear international disputes in a foreign language.

Under the previous system, Korean has always been the only language used in Korean courts. However, the amended law will now allow parties to submit briefs and evidences and make oral arguments in a foreign language under the consent of the parties. Upon ruling, the international tribunal will provide an officially translated English version of its decision.

As the number of lawsuits involving foreign parties has been ever increased in Korean courts each year, there has been a subsequent rise in need to establish an international tribunal that would implement the hub court in resolving international patent disputes.