Parody Issue in Korea : Hermès International v. Play No More Co. Ltd. Cases

1. Fact

           - Defendant’s Accused Bags with their slogan "Fake For Fun"

2. No Confusion But Disputed Issues

Hermès alleged that defendant Play No More copied its Kelly and Birkin handbag designs which caused consumer confusion. However, defendants argued that no consumer’s confusion was caused by their goods.

Further, in particular Hermès claimed that defendant infringed Hermès’ economic interest with unfair competitive acts under Article 2(1)(j) of the Korean Unfair Competition Prevention and Trade Secret Protection Act (“Unfair Competition Act”).

Accordingly, the issue was whether defendant’s good is allowable as a parody or not allowable as a unfair competitive act under Article 2(1)(j) of the the UCPA catch-all provision, Article 2(1)(j).

3. Court’s Decisions

At the first instance, the Seoul Central District Court confirmed that the designs of the Kelly and Birkin bags were protected by the catch-all provision. The Court concluded that, even though there was no risk of consumer confusion, these designs of luxury handbags should be given legal protection and not given over to the public domain.

On the other hand, the Court noted that Play No More's slogan, "Fake For Fun," implied that Play No More intended to free-ride on Hermès' goodwill. The Court concluded that Play No More's unauthorized actions unfairly took advantage of Hermes' work product and were conducted in a manner contravening fair trade practices and competition order. The court ordered a permanent injunction on the manufacture and sale of the infringing products and damages.

However, at the second instance the Seoul High Court sided with defendants. The appellate court reversed the lower court’s ruling and dismissed all of Hermès claims. The case was appealed to the Korean Supreme Court and is pending.