The Amended Design Protection Act and the Utility Model Act Implemented as of June 10, 2022
Keum Nang Park, Lee & Ko (Korea)
As of June 10, 2022, the amended Design Protection Act and the Utility Model Act (the “Amended Acts”) have been implemented. The crime of infringing a design right or utility model right is now treated as so called “an offence unpunishable over objection,” thereby no longer falling under so called “an offence subject to complaint.”
For “an offence subject to complaint”, the victim of a crime or his or her legal representative has the right to file a criminal complaint (the “Persons with Accusation Right”), and the prosecutor cannot prosecute the wrongdoer unless the Persons with Accusation Right first make a criminal accusation. A criminal complaint against the wrongdoer needs to be filed within 6 months from the date on which the victim gains the knowledge of the identity of the wrongdoer. In the case of “an offence unpunishable over objection”, the prosecutor can prosecute the wrongdoer even when no criminal complaint has been filed by Persons with Accusation Right, as is similarly the case for “an offence indictable without complaint.” However, criminal punishment becomes unavailable if the victim clearly communicates the intent that he or she does not want punishment of the wrongdoer (or withdraws complaint]). For both “offence unpunishable over objection” and “offence indictable without complaint”, there is no prescribed period for filing a criminal complaint.
The amended Acts do not apply retroactively, meaning that they apply only to crimes committed on or after the date of implementation. Thanks to the amended Acts, criminal procedures may now be proceeded for most acts of infringing intellectual property rights, including patents and trademarks, even in cases where no criminal complaint has been filed The Patent Act was already amended as of October 20, 2020 to the same effect. The Trademark Act and the Unfair Competition Prevention Act have never required the filing of a criminal complaint in the first place, as they are meant to serve public interests – that is, the protection of consumers in the general public.
Putting the above altogether, Korea now has a legal system in which most acts of infringement of intellectual and industrial property rights are defined as either an offence unpunishable over objection or an offence indictable without complaint. Prosecutors can therefore undertake criminal procedures without the filing of a criminal complaint by Persons with Accusation Right. These recent amendments indicate a trend towards affording increased protection on intellectual property rights in Korea.
The Act on Special Measures for Strengthening and Protecting Competitiveness of National High-Tech Strategic Industries Implemented as of August 4, 2022
The Act on Special Measures for Strengthening and Protecting Competitiveness of National High-Tech Strategic Industries (the “Special Act”) has been implemented with the aim of maintaining national and economic security and enhancing the competitiveness of Korea’s high-tech industry.
To comply with the Special Act, a business that intends to (i) export strategic technologies to overseas companies by means of sale or assignment or (ii) proceed with a cross-border M&A or joint venture is required to obtain an approval from the Minister of Ministry of Trade, Industry and Energy (the “MOTIE Minister”). If such business activities are conducted without obtaining the MOTIE Minister’s approval or if such approval is obtained using unlawful means, the MOTIE Minister may order suspension, prohibition and restoration. Furthermore, such acts may be subject to criminal punishment. To reinforce the protection of national strategic technologies, the Special Act provides for heightened and stringent penalties and, therefore, greater vigilance is warranted