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Subject |
TM's Protection(5)-Unregistered Famous Marks |
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| No |
13 |
Name |
IP_Park |
Date |
2003/10/31 16:07:47 |
Homepage |
http://www.ippark.com |
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7. Protection of Unregistered "Famous" Marks
The UCP stipulates remedies for the taking and use of a well-known identifier by a third party in a way that is likely to confuse or mislead consumers. An identifier may be a trade name, a trademark, product container, packaging, trade dress, etc., which can be viewed as indicating the source of the goods. Article 2(1) of the UCP in particular prohibits acts which may cause confusion with respect to the origin of the goods. These acts include causing confusion of one's goods with another's by using another's name, trade name, trademark, or container for goods of packaging or other aspect of the goods which serve to identity the source of the goods.
In order to be successful in an unfair competition action under the UCP, the plaintiff must show (1) that its goods identifier is well-known in Korea as the plaintiff's identifier, (2) that the infringer's identifier is confusingly similar to the plaintiff's well-known identifier, and (3) that there is likelihood of confusion among the consumers.
The goods identifier must be well-known in Korea. Therefore, under the current and court precedents, it is not sufficient that the product identifier be well-known in the home country or certain countries outside Korea. The standard which must be met is generally high. However, due to the paucity of cases under the UCP, it is difficult to state definite criteria by which the court will make its determination. The case will ultimately be decided by the judge in his discretion in consideration of various factors. The court generally considers sales volume and sales period of the goods, frequency and expense of the advertising, and other relevant factors. Public surveys are not widely used but can certainly provide useful evidence of well-known status.
A person who breaches such provisions under UCP is subject to criminal punishment with penal servitude of up to three years, or by a fine of up to thirty million Won (about US$25,000.00).
III. Necessary Documents
The necessary documents for proceeding with a civil or criminal action are a notarized Corporation Nationality Certificate and a simply signed Power of Attorney from the plaintiff. |
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