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IP Newsletter | Winter 2016/17
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TRADEMARK, DESIGN & UNFAIR COMPETITION
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Criminal Penalties to be Introduced for Selling "Dead Copy" Products
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An important amendment to the Unfair Competition Prevention and Trade Secret Protection Act ("UCPA") which will go into effect on July 18, 2017 was recently published. Under the new amendment, infringers who violate the "dead copy" provision of the UCPA may be subject to imprisonment for up to three years or a fine of up to 30 million Korean Won (approximately USD 24,000). Additionally, the amendment permits KIPO and/or local government offices to investigate potential "dead copy" violations cases on their own initiative, even in the absence of a complaint from a competitor.
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Under the "dead copy" provision of the UCPA, the act of selling, leasing, displaying for sale or lease, or importing or exporting a product which imitates the appearance of another's product (i.e., the shape, pattern, color, or combination of such attributes) is prohibited as an unfair competitive act, provided that (i) the imitation product is sold, leased, displayed for sale or lease, or imported or exported within three years of the date the original product was first created; and (ii) the appearance of the imitation product is not common to products of the same type.
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This provision came into effect on July 21, 2004, and since then has played an important role in protecting unregistered designs in Korea, since there is no requirement that the original product design be famous, or that the product design be a source-identifier (unlike other UCPA or trademark causes of action). There have been many court decisions to date which effectively put a stop to the manufacture and sale of "dead copies" in the context of product packaging, textiles, bedding, fashion products such as footwear, clothing and sunglasses, electronic devices such as fans, and other consumer goods. However, the provision previously allowed for only civil remedies, which have not been a sufficient deterrent in some cases, and also require a party to engage in costly civil litigation to enforce its rights.
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By introducing criminal sanctions for violation of the "dead copy" provision, this amendment will make it less arduous and less expensive particularly for first market entrants to enforce their rights against knockoffs of their products.
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If you have any questions regarding this article, please contact:
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For more information, please visit our website: www.ip.kimchang.com
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