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Trademarks, and service marks (Trademark hereinafter) may be protected in the Republic of Korea under the Trademark Act; and for such protection, Trademark should be registered with the Korean Intellectual Property Office ("KIPO"). The use of a trademark is not a prerequisite for filing an application for the registration of a trademark. Unregistered marks are not protected under the Trademark Act, although the owner of a well-known or famous mark is given some protection under the Trademark Act by way of preventing others from obtaining a trademark registration for an identical or similar mark. There is no course of action against infringement of a well-known or famous unregistered trademark under the Trademark Act, but an action may be brought under the Unfair Competition Prevention Act.
Any person who uses or intends to use a trademark in the Republic of Korea may file an application for the registration of a trademark. Although the Korean Trademark Act adopts a registration system, not a use system, the applicant of a trademark application should have a bona fide intent to use his trademark in the Republic of Korea. Nonetheless, trademarks which will not actually be used are also registered. Such trademarks, however, will be subject to cancellation if they remain unused for three or more consecutive years after their registration.
For a trademark application, the following documents should be submitted to KIPO:
a request stating the name and address of the applicant (including the name of an executive officer, if the applicant is a juristic person), the trademark, the designated goods and class thereof, the date of submission, and the country and filing date of the priority application, if the right of priority is claimed;
10 specimens of the trademark (7cm x 7cm or smaller in size);
if the right of priority is claimed, the priority document; and
a power of attorney, if necessary. If the applicant fails to submit specimens of the trademark or power of attorney at the time of filing the trademark application, KIPO will issue a notice of amendment requesting the applicant to submit them, designating a time limit therefor. The priority document must be submitted within 3 months from the filing date in the Republic of Korea of the trademark application. This time limit cannot be extended
A person who desires to file a trademark application must designate goods/services on which the trademark is to be used in accordance with the Nice Classification of Goods or Services for the Purpose of Registration of Marks. The Republic of Korea adopted the Nice Classification as of March 1, 1998. A trademark application may be filed for the registration of trademark for goods or services which fall under several classes in accordance with the Nice Classification. In this case, the applicant has to pay additional fees for each classification.
The right of priority can be claimed in a trademark application for a applicant whose country of origin is a party to the Paris Convention or under a bilateral agreement between two relevant governments or on a reciprocal basis. In order to enjoy the priority right, an application should be filed in the Republic of Korea within 6 months from the filing date of the priority application. The priority document should be submitted to KIPO within 3 months from the filing date of his/her application.
Unlike patent or utility model applications, trademark applications are automatically examined in order of their filing date. No request for examination is needed for the initiation of substantial examination. Furthermore, the Trademark Act does not provide for the expedited examination system which is available for patent, utility model and design applications. The examination of a trademark application generally takes about 1 year from its filing date
For a trademark to be registered under the Trademark Act, it should meet the following requirements:
It should fall under the definition of a trademark prescribed in the Trademark Act:
It should be distinctive so as to serve as an indication of goods or services or, if it is not inherently distinctive, it should have acquired a secondary meaning;
It should not fall into any of the categories of unregistrable trademark prescribed in the Trademark Act. In addition to the reason for rejection, an opposition against the application can be filed by the owner of a trademark registered in the territory of a member country of a treaty to which the Republic of Korea has acceded, if both the trademark and the designated goods of the application are identical with, or similar to, those of the foreign trademark registration and if the application is filed by a person who is, or used to be, an agent or a representative of the owner of the registered trademark within 1 year prior to the filing date of the application concerned without obtaining the authorization or consent from the owner of the registered trademark.
An applicant who is notified of the grounds for rejection may submit an Argument with or without an amendment within a time limit designated by the Examiner. Such a time limit is extendable
If the examiner considers that the argument has not overcome the ground for rejection, he issues a Notice of Final Rejection of the trademark application.Against the final rejection, the applicant may file a trial before the Intellectual Property Tribunal(“KIPT”) in KIPO within 30 days from the date of the receipt of the final rejection. The time limit for filing the trial may be extended for month at the applicant’s request.
If the examiner finds no ground for rejection of a trademark application, or he considers that the rejection has been overcome by the applicant's response (argument and/or amendment), he shall render a decision to publish the trademark application.
Once a trademark application is published in the official gazette, called the "Trademark Publication Gazette," any person may file an opposition within 30 days from the publication date. The thirty-day period cannot be extended. A notice of opposition containing a brief statement on the grounds for opposition must be submitted within the thirty-day period. Then, the opponent may amend, add or supplement the grounds for opposition within 30 days after the expiration of the thirty-day period
The duration of the protection of a trademark right is 10 years from the date of registration of the trademark, which may be renewed every 10 years. For the renewal of a trademark registration, an application for the renewal should be filed with KIPO.Once a renewal application has been duly filed, the trademark registration is deemed to have been renewed on the expiration date of the original registration.
The Korean Trademark Law has various types of trials: Trial against the Examiner’s final decision, Trials to Invalidate Trademark Registration, Renewal of the Term of a Registered Trademark and Registration for the Reclassification of Goods, Trial to cancel of Registerd Trademark and Registration of Exclusive or Nonexclusive License, and Trial to confirm Scope of Trademark Right.
Each procedure of the Trials and Appeal against trial decision is same with that of patent
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