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.
