An amendment to the Korean Design Protection Act (“Act”) has been proposed to protect new types of image designs with augmented reality or virtual reality technologies, such as virtual laser keyboards and holograms. The amendment was promulgated on April 20, 2021 and will take effect from October 21, 2021.

Since the existing Act only protects image designs when displayed on a physical panel or screen of an item, it is currently not possible to protect computer generated image designs projected on external surfaces. However, pursuant to the “digital revolution,” products incorporating new types of image designs that may not be generated on computer screens, such as augmented reality, holograms, and projections, have been released in the market. The market for such new types of design products has been growing and expected to continue growing rapidly in the future, and there have been international developments in design law to address the protection of such new types of image designs, while South Korea’s design law has been criticized for failing to keep up with this trend.

The proposed amendment tries to address this discrepancy by modifying the “definitions” section of the Act to indicate that image designs can be protected regardless of whether they are displayed on a screen or not. However, while image design is defined as “a figure/symbol expressed by digital technology or in an electronic manner,” the proposed amendment also adds a limitation that image designs not displayed on a screen must constitute an “image design that is used for the operation of a device or that exhibits a function.” In addition, the amendment specifically stipulates what is considered the “execution” of an image design. This includes online transmission or transfer, rental, export, and import of media (USB, SD CARD, etc.) that store the image design, and the production and use of such media. This stipulation is intended to reflect that image designs are essentially “data,” and thereby intended to effectively protect the holder of image design rights from infringement and to afford stronger protection to image designs by sanctioning online piracy and unauthorized reproduction and transmission.

Image designs that are displayed on a physical panel or screen of an item will continue to enjoy the same protection under the amended Act, regardless of whether it is used for the operation of a device or exhibits a function.

With the implementation of the amended Act, new types of image designs will now enjoy effective and comprehensive protection in Korea. Given that the Korean design practice is a first-to-file system, it also remains important for companies that have already developed image designs incorporating such new digital technologies to file a design application as soon as the amended Act takes effect. The Korean Intellectual Property Office also commented that the amended Act is meaningful in that it not only strengthens the competitiveness of companies, but is also the first legislation in the intellectual property field in South Korea that supports the “digital revolution.”