Under the Korean Trademark
Law, a trademark holder in a trademark infringement lawsuit may elect between
actual damages and statutory damages. This election is to be made at any time
before judgment is rendered.
Actual damages can be based
on plaintiff’s lost profits, infringer’s profits or reasonable royalties. A trademark
holder must prove the exact amount of actual damages by a preponderance of the
evidence.
In practice, it is often
difficult to prove the amount of damage for IP infringement. The statutory
damage is designed to save rightsholders from such difficulties.
Under Article 111 of the Korean
Trademark Act, a trademark owner may file a claim for statutory damages against
a person who used a trademark identical to the trademark owner’s, either
intentionally or by negligently, on goods identical to the designated goods.
The amount of statutory
damages to be awarded by the court may not exceed KRW 50 million (approximately
USD $45,000.).
Further, with statutory
damages, the court also awards legal cost including attorney fees to the
prevailing trademark owner.
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