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Subject |
TM's Protection(2)-Investgation,Warning Notice,Criminal Remedy |
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10 |
Name |
IP_Park |
Date |
2003/10/31 16:04:53 |
Homepage |
http://www.ippark.com |
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II. Remedy
1. Investigation
Private investigation service is not well developed in Korea. Thus it is often very difficult to obtain information on the identity of the manufacturer of the infringing goods. However, staff members of our law department who are specialized in investigation can investigate an infringer of your/your client's trademark right, if necessary, in cooperation with a local licensee or local distributer of the goods bearing the trademark concerned.
2. Warning Notice
In most cases, an offender who has infringed the trademark right or exclusive license of another person attempts to deny any knowledge of the existence of the counterpart's trademark right. A negligent act consists of an unlawful act under the Civil Law, thus it is possible for an infringed trademark owner to bring a compensation suit against an infringer who does not know the existence of the relevant trademark right, regardless of his bad faith, for the damages caused by the infringement. However, under the Criminal Law, since an offence based on negligence of trademark infringement is not punishable, if a trademark infringer argues his lack of knowledge about the existence of the relevant trademark right, it is very difficult to prove the bad faith of the infringer. Thus, sending a warning notice prior to filing a criminal suit is important since the warning notice prevents the offender from denying the knowledge of the trademark right, that is, bad faith exists as far as the infringement is concerned after the warning notice is sent.
In the warning notice, generally an infringed trademark owner warns about infringement of the trademark right and requests the infringer to cease and desist the infringement and reply to the warning notice by a designated date. Depending upon the content of the infringer's reply to the warning notice and/or the results of any negotiations, the trademark owner can determine whether or not to bring an appropriate legal action, which may be either a civil or criminal action. About 80% of the trademark infringement cases are settled in the course of the warning notice procedure, and the typical settlement should include the following elements:
* To cease infringing activities;
* To destroy remaining stocks of the infringing goods;
* Compensation of damage; and
* Undertaking not to infringe in the future and payment of liquidated damages if such undertaking is breached.
3. Criminal Remedy
Criminal proceedings are usually initiated at the request of the trademark owner, although the persecutors and/or the police have the authority in a trademark case to conduct raids and seize infringing goods on their own initiative. A person who infringes a trademark right is subject to criminal punishment with penal servitude of up to seven years, or by a fine of up to one hundred million Won (about US$ 84,000).
Due to the difficulty in proving damages, most foreign trademark owners do not initiate a civil compensation suit for damages unless they have clear material evidence of infringement and damages. Instead, they can get much faster results by filing a criminal accusation or otherwise urging the prosecutor to take action such as a crack-down of the infringing goods. Usually, if the raid is successful, then the counterfeit goods would be seized and the infringer arrested and put into custody pending investigation and trial. Further, since the bail system in Korea is not well developed, the defendant is usually not released until he settles with the petitioner or the case is resolved. Therefore, the defendant will usually attempt to make a settlement with the trademark owner in exchange for a dismissal of the charge or a lenient penalty. If no settlement is reached and the defendant is convicted, the trademark owner can sue the defendant for civil damages and use as evidence the criminal conviction and information in the police and prosecutors' reports.
If a criminal accusation is filed, it generally takes about 5 to 6 months from the filing date to its decision. |
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