FAQ

In order for a design that has been filed as a design registration application to be registered, it must satisfy the requirements for establishment of a design, and

1. novelty
2. creativity
3. industrial applicability, etc. must be satisfied
4. it must not violate the expanded first-to-file principle (Article 5 of the Design Protection Act).

However, where two or more designs satisfying such requirements, or designs similar thereto, have been filed, only the person who filed first may obtain registration. 

However, for designs filed as unexamined design registration applications, registration is granted by means of an examination method that does not examine 1) novelty, 2) creativity, and 3) the expanded first-to-file principle among the above requirements for registration, and that examines only 1) the requirements for establishment, 2) industrial applicability, and 3) whether grounds for non-registration apply.

Even a design that meets the requirements for registration of a design described above cannot be registered in the following cases (Article 6 of the Design Protection Act).

1. A design identical or similar to the national flag, national emblem, military flag, decorations, badges, or other insignia of public institutions, or to the letters or marks of a foreign national flag, national emblem, or international organization, etc.
2. A design that is liable to disturb public order or good morals
   – A portrait of a head of state or anything equivalent thereto
   – Anything that insults a specific country or its nationals
   – Anything vulgar, repugnant, or otherwise contrary to generally accepted public morals of society
   – Anything contrary to human ethics
   – Any other design that is liable to disturb international relations of trust and a fair competitive order
3. A design that is liable to cause confusion with products related to another person's business
   – A design expressing another person's well-known trademark, service mark, collective mark, or business mark (including three-dimensional trademarks)
   – A design expressing the mark of a non-profit corporation. (d) A design consisting solely of a shape indispensable for securing the function of a product
   – The function of a product means a technical function, and
   
   • a design consisting of a shape inevitably determined to secure the technical function of a product (an inevitable shape)
   • a design consisting of a shape determined by a standardized specification for securing the interchangeability of products, etc. (a quasi-inevitable shape)
   cannot be registered.
4. A design identical or similar to a design that became publicly known abroad before the design registration application ※ The Korean Design Protection Act provides that a design loses its novelty if it has been widely known domestically or abroad before the application; therefore, even if it is not known in Korea, a design identical or similar to a design that became publicly known abroad before the design registration application cannot be registered.

※ For details on the requirements for design registration, please refer to "KIPO (Korean Intellectual Property Office) website (http://www.kipo.go.kr) ▶ Intellectual Property System ▶ Trademark/Design ▶ Understanding Design".

The drawings are the primary basis for interpreting the scope of protection of a design, so amendments are rarely permitted. Therefore, they must be prepared perfectly from the outset.

The drawings attached to a design registration application must be prepared in accordance with the forms in Annex No. 3 (drawings for three-dimensional designs) and No. 3-2 (drawings for two-dimensional designs) of the Enforcement Rules of the Design Act, and must be depicted clearly with dense India ink or black drafting ink.

The design partial-examination registration system is a system under which only the basic requirements are examined for products that are highly trend-sensitive and have a short life cycle, and it takes an average of 3 months until registration.

The products subject to unexamined design are specified as unexamined designs in the design product classification.

The following product classifications are subject to unexamined design (Article 2(5) of the Design Protection Act).

Products subject to unexamined design include

• M1 (woven fabrics, knitted fabrics, synthetic resin sheets)
• B1 (clothing)
• C1 (bedding, floor coverings, curtains)
• F3 (office paper products, printed matter)
• F4 (wrapping paper, packaging containers)

and others.

For other products, you must file an examined design registration application.

Unlike patents or utility models, designs do not have an examination request (technical evaluation) system.

However, after a design application has been published, you may request accelerated examination if it is found that a person other than the applicant is commercially working the filed design, or if it is found that urgent processing is necessary for a design application prescribed by Presidential Decree (applied mutatis mutandis under Article 30 of the Design Protection Act; Article 61 of the Patent Act).

※ For accurate classification, you can check on the KIPO (Korean Intellectual Property Office) website (http://www.kipo.go.kr) ▶ Intellectual Property System ▶ Classification Code Search ▶ Design Classification Code. (As of 2016)

If you receive an Office Action (notice of grounds for rejection) after filing a design application, you may submit a written opinion or an amendment. A written opinion is used to state the applicant's opinion, while an amendment is submitted to correct or delete the contents of the design application that the applicant has filed.

When submitting such a written opinion or amendment, you may download the "Written Opinion" or "Drawing Amendment" form from the civil-petition forms section of the KIPO (Korean Intellectual Property Office) website and prepare it, or you may prepare it using electronic filing software.

• When submitting a design examination registration application in paper form - Basic fee: 70,000 KRW
• In the case of non-examination - Basic fee: 55,000 KRW
• Additional fee - In the case of multiple designs, 55,000 KRW is added for each design exceeding one (Article 6 of the Regulations on the Collection of Patent Fees, etc.).
• When the creator and the applicant are the same individual, a 70% reduction applies, so you only need to pay 30%.
• When submitting by mail, the fee may be exchanged for a postal money order and enclosed together with the application (Article 8 of the Regulations on the Collection of Patent Fees, etc.).
• When submitting an amendment
  If the submission method is paper: 13,000 KRW
  If online: 3,000 KRW
• For reference,
  Request fee for keeping a design confidential - 20,000 KRW per design
  Application fee for publication of a design examination registration application - 24,000 KRW per case.

※ Previously, only the applicant of a design examination registration application could request publication of their own design registration application, but it was amended effective July 1, 2005, so that anyone can request publication of an application regardless of whether it is subject to examination or non-examination (Article 23-2, Paragraph 1 of the Design Protection Act).

Because the most important function of a trademark is to distinguish one party's goods from another's, in order to be registered as a trademark it must first possess distinctiveness.

Under the Trademark Act, distinctiveness means enabling traders and general consumers to recognize whose goods the goods bearing the trademark are. In general, it is advisable to consider factors such as being easy to call, easy to remember, memorable over a long period, easy to distinguish from other trademarks, and useful for advertising and promotion.

A trademark may also consist of signs, characters, figures, three-dimensional shapes, or a combination thereof, as well as any of these combined with colors. Accordingly, you may file characters and a logo as separate trademarks, or you may combine characters and a logo and file them as a single trademark.

Pursuant to Article 6, Paragraph 1 of the Trademark Act, a trademark cannot be registered in the following cases.

1. a. A trademark consisting solely of a mark indicating, in a common way, the common name of the goods
   e.g., the trademark "CAR" for the designated goods "automobiles," the trademark "jeans" for the designated goods "clothing," etc.
2. b. A trademark customarily used in connection with the goods
   e.g., the trademark "Jeongjong" for the designated goods "cheongju (refined rice wine)," the trademark "Kkang" for the designated goods "snacks," etc.
3. c. A trademark consisting solely of a mark indicating, in a common way, the place of origin, quality, raw materials, efficacy, use, quantity, shape (including the shape of packaging), price, production method, processing method, method of use, or time of the goods
   e.g., the trademark "Geumsan" for the designated goods "ginseng," the trademark "quality assurance" for all goods, the trademark "bean" for the designated goods "tofu," etc.
4. d. A trademark consisting solely of a conspicuous geographical name, an abbreviation thereof, or a map
   e.g., the names of cities, counties, and districts; New York; Jongno Academy; Jangchung-dong Wang Jokbal, etc.
5. e. A trademark consisting solely of a mark indicating, in a common way, a common surname or name
   e.g., Yun's Farm House, trading company, store, industrial works, chairman, president, etc.
6. f. A trademark consisting solely of a simple and common mark
   e.g.,
   • In the case of a character mark, a mark composed of a single Hangul character or Chinese character, or two or fewer other foreign characters
   • A combination of two numerals, or a combination of one foreign character and one numeral
   • Commonly used marks such as circles, triangles, squares, rhombuses, symbols, or the swastika (卍), the triple Taegeuk, etc.
   • Common marks such as spheres, cubes, rectangular prisms, cylinders, triangular prisms, etc.
7. g. In addition to items 1 through 6, a trademark by which consumers cannot identify whose business the goods are connected with
   e.g., http://, www, @, "CYBER" for the telecommunications business, "NEWS" for the data provision business, etc.

For a trademark registration application, you must designate one or two or more goods on which the trademark will be used within the classification of goods prescribed by the ordinance of the Ministry of Commerce, Industry and Energy, and file an application for each trademark. This is called the one-application-per-trademark principle, which means that filing two or more trademarks simultaneously in a single application is not permitted. To file two or more trademarks, you must submit a separate trademark registration application for each (Article 10 of the Trademark Act). The one-application-per-trademark principle is a basic principle that applies to new trademark registration applications, applications for additional registration of designated goods, and applications for renewal registration of the term of a trademark right.

Under the "1997 amended Trademark Act," effective March 1, 1998, the one-trademark/one-class/one-application system was abolished and the one-trademark/multi-class/one-application system was adopted. As a result, while an application is still filed for each trademark, it became possible to file an application designating both goods and services at the same time.

Based on the filing date of a trademark, only the person who files first can obtain the trademark registration. Article 8, Paragraph 1 of the Trademark Act provides that "where there are two or more applicants for trademark registration on different dates with respect to identical or similar trademarks to be used on identical or similar goods, only the person who files first may obtain trademark registration for that trademark" (Article 8, Paragraph 1 of the Trademark Act).

Only a priority claim based on a treaty may be made.
The treaty-based priority system under the Trademark Act (Article 20 of the Trademark Act) is a system under which, where a national of a State party that grants a priority right with respect to trademark registration applications in Korea by treaty files a trademark registration application (hereinafter the "prior application") in that State party or another country (the first country) and then files an application for registration of the same trademark in Korea (the second country) (hereinafter the "subsequent application") and claims priority, the point in time for applying certain provisions of the Trademark Act (Article 8, first-to-file principle) to the subsequent application is deemed to be the filing date of the prior application; this principle also applies in the same way where a Korean national files a prior application in one of the above treaty States party and files a subsequent application for the same trademark in Korea and claims priority (Article 20, Paragraph 1 of the Trademark Act).

A person who wishes to claim priority cannot do so unless the application is filed within 6 months from the filing date of the first application that forms the basis of the priority claim, and a person who wishes to claim priority must, when filing the trademark registration application, state in the trademark registration application form the purport thereof as well as the name of the country in which the first application was filed and the date of that application.

A person who has claimed priority must submit to the Commissioner of KIPO (Korean Intellectual Property Office), within 3 months from the filing date of the trademark registration application, a document stating the date of the trademark registration application as recognized by the government of the country in which the first application was filed, together with a certified copy of the trademark and the designated goods; if the above documents are not submitted within the period, the priority claim loses its effect.