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Subject |
IPR's Protection in Customs Law(2) - The Scope of Application/Definitions |
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15 |
Name |
IP_Park |
Date |
2003/10/31 16:10:04 |
Homepage |
http://www.ippark.com |
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2.The Scope of Application/Definitions
These provisions will apply to importing/exporting goods which infringe trademarks registered by the Trademark Act, and importing/exporting works which infringe copyrights protected by the Copyright Act.
Goods infringing a trademark right refer to those which are imported/exported using a trademark which is identical or similar to the registered trademark of a third party on goods which are identical or similar to the designated goods of the registered trademark. Works infringing a copyright mean those which are imported/exported with the intent to distribute such works that infringe the copyright protected by virtue of the Copyright Act.
However, if the goods bearing a trademark which is identical to the registered one are imported, and the foreign and local owners of the same trademark have the following relationships with each other, the imported goods by a third party are not regarded as infringing goods:
- a foreign trademark holder and a local holder are the same or both are regarded as the same because either party is a subsidiary, a capital affiliated company (e.g., the largest shareholder of over 30% shares), or an import agent of the other, etc.
- an exclusive licensee of a trademark holder in Korea who has the above relationships with a foreign holder. If an exclusive licensee manufactures and sells within Korea, the same provision is applicable provided that the exclusive licensee is the same or regarded as the same to his foreign trademark holder.
Under the Trademark Act, an exclusive licensee is allowed to use the registered trademark within the extent permitted under the license on an exclusive basis (Article 55-3). Customs Administration Notice, on the other hand, states that an exclusive licensee may exercise his exclusive right when he manufactures and sells all of the goods bearing a trademark involved within Korea, whereas the exclusive licensee cannot prevent the parallel importation by a third party when he only imports, or imports and manufactures the goods. That is, even if an exclusive license is granted, where the exclusive licensee only imports the goods, or imports and manufactures the goods bearing the registered trademark there is no way to forbid the parallel importation/sale by unlicensed importers because such importation/sale itself will not constitute infringement. |
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