|
|
 |
| |
 |
|
Subject |
TM's Protection(3)-Civil Remedy |
|
| No |
11 |
Name |
IP_Park |
Date |
2003/10/31 16:05:54 |
Homepage |
http://www.ippark.com |
|
| |
4. Civil Remedy
(a) Injunction
An infringed trademark owner can bring an injunction against the person who is infringing or likely to infringe his trademark right, thereby seeking a judgement that the infringer cease and desist from continuing the infringing activities or take measures to prevent the infringement. In bringing such an action, the trademark owner may also plead that goods constituting the infringement be destroyed. If an injunction is filed, it generally takes about 6 to 12 months to obtain an order on the injunction from its filing date.
If the court finds that a prima facie case of infringement has been established, the court will order the trademark owner to make a security deposit to the court (The amount of security deposit will be fixed at the court's discretion, considering the possibility of reversing their order and the likelihood of damages to the other party due to the order). In the alternative, the petitioner also is allowed to file a bond covering 1% of the fixed amount, e.g., if ordered to deposit US$100,000.00 from the court, he may file a bond of US$1,000.00. If the court issues an injunction order, the court will i) prohibit the infringer from continuing the manufacturing or sale of the goods which infringe the trademark right; ii) direct that the infringing goods be transferred to the custody of a court sheriff; and iii) instruct the court sheriff to post an appropriate public notice of the order on the premise of the respondent. The `injunction is enforced by the sheriff at the trademark owner's expense.
(b) Damage Compensation Suit
A trademark owner or its exclusive licensee may also bring a compensation suit for damages caused by the infringement against the infringer. In this case, the responsibility to prove the amount of damages is a burden upon the plaintiff. If trademark infringement occurs, proving the amount of damages with sufficient precision is usually difficult. The KTA does not recognize treble damages. Thus, only actual damages can be compensated. Instead of proving the actual damages, the trademark owner may seek either forfeiture if the infringer's profit is derived from the infringing activities, or payment of an ordinary royalty. It generally takes about 6 to 12 months from the date of petition to its decision in district court, 12 more months in high court, and 12 additional months in the Supreme Court.
(c) Recovery of Credit/Reputation
If a trademark owner or its exclusive licensee loses his credit/reputation in business due to the infringement, the court may, upon a request of the patent owner or its exclusive licensee, order the infringer to take other measures necessary for recovering the credit in business of the trademark owner or its exclusive licensee. As the method to recover the goodwill of the trademark owner, an apology notice about infringing the reputation of the trademark owner or its exclusive licensee usually has been placed in a daily newspaper. However, if an infringer of the trademark right does not accept that, the trademark owner can not force the infringer to place the apology notice since it is contrary to the freedom of conscience under the Constitution Law. Thus, these days, instead of the apology notice, the recognition notice of the trademark infringement is published in a daily newspaper.
(d) Arbitration/Conciliation
If there is an agreement on arbitration for settlement of a trademark infringement, the trademark infringement case shall be settled by the decision made by the Arbitrators chosen by both parties. In case that there is no agreement on arbitration, before commencing a civil lawsuit, then one of the two parties may request a civil court to solve the case through conciliation procedure. In the course of a civil lawsuit, the court may send the trademark infringement case to the Civil Conciliation Commission. At any rate, if both parties do not accept the decision made by the Civil Conciliation Commission at the same time, the case shall be settled by a judgement made by a judge at the civil court. However, if both parties accept the decision of the Civil Conciliation Commission, it has the same effect as an out-of-court settlement under the judicial system. |
|
 |
| |
|
|
| |
|
| |
|
|
