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Newsletter | December 2013
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INTELLECTUAL PROPERTY |
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Amendments to the Unfair Competition Law |
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In Korea, the Unfair Competition Prevention and Trade Secret Protection Act (“UCPA”) protects intellectual property rights by preventing unfair methods of competition and the misappropriation of other’s trade secrets. Recent amendments have been made to the UCPA that identify additional types of unfair competitive acts and reward those who apprise the authorities of such behavior. These amendments were promulgated on July 30, 2013 and will become effective on January 31, 2014.
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General “Catch-All” Provision
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Article 2(1) of the UCPA defines the types of activities that are “acts of unfair competition.;” Currently, the UCPA lists 9 specific unlawful activities that constitute a potential unfair competition claim. As a result, other unlawful activities that may be considered unfair competition but do not fall within Article 2(1) remain unregulated under the UCPA despite their negative impact on fair business practices.
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The recent amendment has added a 10th anticompetitive act under Article 2(1)(x); “an act of infringing another’s right to profit by using that person’s achievement, etc., which is the result of considerable effort and investment, for one’s business through a method that contravenes fair commercial trade practice or competition order.” The goal of this general provision is to provide parties with appropriate means against third parties that commit new types of unfair competition. All civil remedies generally available under the UCPA, including injunctive relief and damages, are also available for this new claim except for criminal sanctions.
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Proof of Original |
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A system has been implemented to make it easier for a holder of a trade secret to prove that an electronic document containing the trade secret is the original (Articles 9(2) through 9(7)). This new system entails having the electronic fingerprint identifier which is unique to each electronic document registered with an organization responsible for certifying originals. Thereafter, if necessary during the course of litigation, the organization will certify whether a particular electronic document is the original by checking the electronic fingerprint identifier. This new system will lessen the burden on plaintiffs who need to prove their possession of a trade secret during the course of litigation.
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Reward System |
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Monetary incentives for reporting unfair competitive acts have also been added to the UCPA. The Commissioner of the Korean Intellectual Property Office may reward a person that reports a party that is causing confusion by using a sign identical/similar to another person’s registered trademark.
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Comment |
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These new amendments to the UCPA are in recognition of the new types of unfair competition acts that are becoming more prevalent in the marketplace due to the advancement of technology and that monetary incentives may be needed to effectively prevent unfair competition. We anticipate that greater protection will be afforded to those that hold rights to trademarks famous in Korea or trade secrets.
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