|
|
|
|
|
|
|
IP Newsletter | Winter 2017/18
|
|
|
|
|
|
|
|
|
|
|
TRADEMARK, DESIGN & UNFAIR COMPETITION
|
|
|
|
|
|
KIPO Exercises Its New Enforcement Powers Under the Recently Amended "Dead Copy" Provision of the UCPA Enforcement
|
|
|
|
|
|
The Korean Intellectual Property Office (KIPO) recently conducted an investigation of a Korean company, Mother Love Inc., for violating the Unfair Competition Prevention and Trade Secret Protection Act ("UCPA"), and issued a corrective order requiring that they cease the manufacture and sales of their home meal replacement product, which is shown below next to an earlier competing product from Egnis Inc.:
|
|
|
|
|
| Egnis Inc. – LABNOSH |
Mother Love Inc. – Crash on meal |
|
|
|
|
|
|
|
KIPO determined that the appearance of the bottle, the label design attached to the bottle, the nature and color of the products (i.e., pastel colored powder), and the overall appearance of Mother Love's products were all substantially identical to Egnis's product, in violation of the "dead copy" provision of the UCPA. The "dead copy" provision of the UCPA prohibits the act of selling, leasing, displaying for sale or lease, importing or exporting a product which imitates the appearance of another's product (i.e., the shape, pattern, color, or combination of such attributes), provided that (i) the imitation product is sold, leased, displayed for sale or lease, imported or exported within three years of the date the original product was first created; and (ii) the product appearance is not commonly used for the subject goods.
|
|
|
|
|
|
This case is unusual because KIPO's investigation was not due to a filed complaint, but rather an exercise of KIPO's powers under the UCPA to investigate violations on its own initiative. Recent amendments to the UCPA (effective July 18, 2017) expanded KIPO's enforcement authority to include "dead copy" violations, and KIPO's issuance of the corrective order against Mother Love Inc. was the first time KIPO has issued a corrective order to enforce the dead copy provision. Failure to comply with the corrective order will likely result in KIPO's referral of the matter to the police and/or Prosecutors' Office.
|
|
|
|
|
|
Under the amendments, violators of the provision are now subject to criminal penalties ranging from imprisonment for up to three years or a fine of up to 30 million Korean Won (approximately USD 24,000).
|
|
|
|
|
|
KIPO believes that its proactive measures will particularly benefit small-sized companies, whose creative ideas are frequently copied but who often lack sufficient resources to seek effective legal remedies. KIPO has recently expanded its resources for conducting investigations and as of January 2018, begun accepting infringement reports from members of the public.
|
|
|
|
|
|
Back to Main Page
|
|
|
|
|
|
|
|
|
|
If you have any questions regarding this article, please contact:
|
|
|
|
|
|
|
|
|
|
|
|
For more information, please visit our website: www.ip.kimchang.com
|
|
|
|