Selling "Dead Copy" Products of Unregistered Design of a New Product Punished by Criminal Penalties in addition to Civil Remedies

From July 18, 2017, under the Unfair Competition Prevention and Trade Secret Protection Act ("UCPA") 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).

Under the Korean Unfair Competition Prevention Act, the "dead copy" provision prevents selling, leasing, displaying, 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), even though the product is not covered by any design registration.

However, (i) the original imitated product shall be 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 shall not be common to products of the same type.

This provision has been a key to protect unregistered designs. However, under the old law, infringers who sell "dead copy" products of unregistered design are liable for civil remedies including damages and injunction. The old provision allowed for only civil remedies, which have not been a sufficient deterrent in some cases, and require a party to engage in costly civil litigation to enforce its rights.

Under the new law, by criminal sanctions to "dead copy" infringers, the first makers protect their rights against knockoffs of their products more effectively.

On the other hand, KIPO has power to investigate potential "dead copy" violations cases on their own initiative, even in the absence of a complaint from a competitor.