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Amendments to Trademark Laws

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Jul 14, 2022 (Newsletter Issue 9/22)
South Korea
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Amended Trademark Act and Design Protection Act in Force

The Korean Trademark Act (TMA) and the Design Protection Act (DPA) were amended and became effective on April 20, 2022. In addition, the Guidelines for Trademark Examination (Guidelines) were revised and also took effect on the same date. The main amendments are described below.

Response to final rejection now due in 3 months
Trademark and design applicants now have three months to file an appeal, request for reconsideration, and/or divisional/converted application in response to a final rejection notice. Previously, it was 30 days.

Relaxed requirements for restoration of trademark/design rights
In the amended Acts, the term "reasons not imputable to a person" has been relaxed to simply "reasonable reasons," in order to more broadly protect applicants from losing rights due to circumstances out of their control.

Automatic recognition of priority for divisional applications
The amended Acts provide that as long as priority is properly claimed in the original parent application, the same priority is automatically recognized for any divisional application filed from that parent application.

Introduction of new ex-officio re-examination procedure
The amendment provides for a new ex officio re-examination system, under which an examiner who determines that there are obvious refusal grounds for an application after the application is allowed, but before the application is registered, may withdraw the decision to grant a registration and reopen the examination of the application.

Non-exclusive licenses to trademark/design co-owners after transfer of such rights
The amended Acts now provide that co-owner of a trademark/design right who do not consent to a court conduct an auction to sell the trademark or design right in its entirety to a third party are granted a non-exclusive license, if they were already using the concerned registered trademark or using a design identical or similar to the concerned registered design prior to the filing of the auction request. In the case of a trademark right, the license is granted only for uses with goods in connection with the trademark prior to the filing of the request.

Broadening of acceptable evidence of intent to use
The amended trademark examination guidelines recognize intent to use the mark by another entity that can be controlled and directed by the applicant as valid evidence of intent to use, consistent with Article 19 of the TRIPS Agreement. Accordingly, applicants are now able to submit license agreements as evidence of intent to use their mark. In such cases, however, the examiner may still find lack of intent to use if it is objectively impossible for the applicant to control and manage the use of the mark by the license, e.g., if the licensor is legally incompetent.

For more information, please check here and here. Please also check our previous post here