Protection of “Trade Dress” in South Korea

Although the definition of “trade dress” is not specifically found in any IP laws of Korea, trade dress is protectable under the Unfair Competition Prevention and Trade Secret Protection Act ("UCPA"). 

In particular, the UCPA catch-all provision, Article 2(1)(j) protects a party's right to profit from work and intellectual property that it has produced at considerable effort or investment by prohibiting the unauthorized commercial use of such work and IP by others in a manner that contravenes fair trade practice or competition order.

Under the UCPA's "catch-all" provision, a party may 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 and investment in a manner that contravenes fair commercial trade practice or competition order.

This is general and broad to define any acts of unfair competition such as imitating the appearance of another person's product (i.e., the product's shape, pattern, color, gloss, or a combination of these attributes).

On September 21, 2016, the Korean Supreme Court (Case No. 2016Da229058) affirmed that the below trade dress of bakery shop is protectable under the UCPA's "catch-all" provision. The Court held that a bakery shop's general appearance (including the logo, outdoor signage and indoor layout) and other trade dress elements should be protected under the UCPA's "catch-all" provision.

This case is the first case that the Supreme Court specifically recognized the protection of such rights in shop interior and outdoor decorations under Korean law. The defendants were enjoined from unfair business practices by free riding on Seoul Lovers' goodwill, thus meeting the requirements of Article 2(1)(x) of the UCPA. By affirming this decision, the Supreme Court has clearly signaled that the High Court's interpretation was correct, and that trade dress in shop decorations can be protected in Korea under the UCPA. The court ordered defendants a permanent injunction on the manufacture and sale of the infringing products and damages.