Korean Trademark Act and Design Protection Act Amended
Jiyeong Yi, Firstlaw P.C. (Korea)
Revisions made to the Korean Trademark Act (“KTA”) and the Korean Design Protection Act (“KDA”) came into effect on April 20, 2022. The revised laws introduced, among other things, a reexamination system in order to minimize the establishment of defective rights, and to ease the prosecution and acquisition of trademarks and designs by relaxing the requirement for reviving abandoned applications and registrations.
Salient features of the statutory amendments are highlighted below.
Ex Officio Reexamination of Trademarks and Designs
The revised KTA and KDA introduce a reexamination system. Even after a mark or a design has been allowed for registration, if the examiner finds new grounds for rejection, he may issue a Notice of Rejection based on the newly detected grounds. In doing so, the examiner must withdraw the earlier decision of allowance and provide the applicant with an opportunity to respond to the new rejection ground. This reexamination procedure has been introduced for the purpose of preventing the establishment of defective rights and reducing the possibility of invalidation of registered IP rights in advance.
Extension of Time to Appeal Final Rejection from Thirty (30) Days to Three (3) Months
Under the current provisions of the KTA and KDA, applicants are given thirty (30) days from the date of receipt of a final rejection to file an appeal against the final rejection before the IP Tribunal. In response to the criticism that the 30-day window is too short, the revision now allows the appeal period of three (3) months.
Statutory Presumption of Priority Claim for Divisional Application
When a divisional application is filed without making a priority claim, even though the priority has been claimed in filing the original application, the revision provides a statutory presumption that the priority is also claimed for the divisional application so as to prevent the rejection of such divisional application. Such statutorily presumed priority claim may be withdrawn, in its entirety or part thereof, within 30 days from the filing date of the divisional application.