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Subject TM's Protection(4)-Suspension of Legal Procedure
No 12 Name IP_Park Date 2003/10/31 16:06:45 Homepage http://www.ippark.com
 
5. Suspension of Legal Procedure

When infringement of a trademark right is complained of, there is often a dispute as to whether the trademark is actually infringed. In such an event, the trademark owner or the accused party may seek a declaratory ruling from the Korea Intellectual Property Office ("KIPO"), in accordance with the procedures specially provided for this purpose (i.e., Trial to Confirm Scope of Trademark Right). The decision will declare whether the scope of protection of the trademark covers the goods manufactured or sold by the infringer. The infringer may likewise seek a declaratory ruling that the goods manufactured or sold by him do not fall within the scope of protection of the trademark. The declaratory ruling of KIPO is usually persuasive, but it is absolutely not binding on the civil court hearing the trademark infringement suit. The infringer may also contest the validity of the trademark right in the dispute through an invalidation trial before KIPO. Since a trademark right is deemed to be valid unless or until it is invalidated through an invalidation trial and the court does not have an independent right to have the trademark right invalidated, regardless of its decision the court should, in principle, proceed with the lawsuit based on the existence of the trademark right. However, the court hearing the infringement case of the same trademark may, at its discretion, decide to stay the proceedings until KIPO's decision on the invalidation trial is issued, in order to coincide their decision with that of KIPO.

6. Executive Remedy

Under the Customs Tax Act, a registered trademark owner may report his trademark right and the names of its authorized exporters or importers to the Customs House. If the Customs House detects any importing or exporting goods bearing the reported trademark other than the authorized importers or exporters, then they may notify the fact to the trademark owner when the goods declared to the Customs House are deemed to be likely to infringe the reported trademark right. A trademark owner may request reservation of customs clearance for any infringing goods contained in a particular export or import shipment by depositing with the Customs House an amount equivalent to 120% of the taxable price of the relevant imported or exported goods as security. Upon receipt of the request, the Customs House is required to confiscate the goods. Within 10 days from the receiving date of the reservation notice from the Customs House, the trademark owner should show that it has filed a lawsuit against the exporters or importers, or should file any material evidence to prove the infringement together with a specialist's opinion such as a patent attorney with the Customs House. The exporters or importers may, in turn, request permission of the customs clearance for the goods by also depositing with the Customs House an amount equivalent to 125% of the trademark owner's deposit as security. If such request is filed with the Customs House, the Review Committee of the Customs House will review the request for the permission of the customs clearance. If it is discovered that infringing goods are being imported or exported, then even after they have completed customs clearance, the Customs House may order the importer or exporter to carry the infringing goods into a bonded area. After such removal of the goods, they will be examined by the Customs House and may be used as material evidence in a civil lawsuit or criminal accusation.
 
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