IP Newsletter | Fall/Winter 2015
	TRADEMARK, DESIGN, COPYRIGHT & UNFAIR COMPETITION
	Korean Court Holds Again that a Store's Appearance is Protectable Trade Dress
	Only recently, at the end of 2014, the Seoul Central District Court recognized for the first time in a case involving competing ice cream shops in Korea1 that a shop's general appearance and decorative elements can be protected trade dress under the Unfair Competition Prevention and Trade Secrets Act ("UCPA")2. In another recent case handled by Kim & Chang on behalf of the plaintiff, the same court has now issued another decision confirming that a bakery shop's general appearance (including the logo, outdoor signage, and indoor layout) and other decorative elements are protected trade dress under the UCPA (Case No. 2014Gahap529490, July 10, 2015). Facts This case was brought by Seoul Lovers, a premium bakery shop specializing in freshly baked sweet red bean pastries, against a former employee of Seoul Lovers and his business partner, who had opened their own bakery shop imitating Seoul Lovers' shop appearance and design concepts. Under the so-called "catch-all" provision of the UCPA (Article 2(1)(x)), Seoul Lovers sought a permanent injunction and damages against the defendants on the grounds that the defendants infringed Seoul Lovers' trade dress by copying its shop appearance and design.
	Seoul Lovers Defendants' bakery Logo Outdoor Signage Indoor Layout & Design
	Decision The court recognized that the appearance and design elements claimed by Seoul Lovers as its trade dress were produced after considerable effort and investment on Seoul Lovers' part for the purpose of distinguishing Seoul Lovers from other bakeries, and that the defendants were engaging in deceptive and wrongful business practices by free riding on Seoul Lovers' goodwill. The court also awarded substantial damages to Seoul Lovers from the defendants, despite the normal difficulty in calculating actual damages in trade dress cases. The court used the defendants' entire sales during the period of infringement as the basis for the damages award, and calculated lost profits according to Seoul Lovers' profit margin rather than the defendants'. While the decision was appealed to the Seoul High Court and is pending, it is becoming increasingly clear that retail stores' general appearance and design concepts can be effectively protected in Korea under the UCPA, even if not otherwise registered in Korea.
	1 For more details about the case (in which Kim & Chang successfully represented the plaintiff, Softree), please see our Winter 2014/15 newsletter here. One of the UCPA claims in that case was later overturned on appeal (and is subsequently pending before the Supreme Court), but the appeal of the "catch-all" UCPA claim covering the general appearance of the store was withdrawn by the defendant and thus the decision as to that claim is now final. 2 UCPA Article 2(1)(x): A party shall not interfere with another person's right to profit by appropriating for one's own business use, without authorization, anything which the other person produced through considerable effort or investment in a manner that contravenes fair commercial trade practice or competition order.
	Back to Main Page
	If you have any questions regarding this article, please contact:
	Chunsoo LEE cslee1@kimchang.com Mikyung (MK) CHOE mkchoe@kimchang.com Seung-Chan EOM seungchan.eom@kimchang.com
	For more information, please visit our website: www.ip.kimchang.com