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Title : Design Law
Writer : admin Date : 2008/06/11 23:04:56 View : 4,587

This is a summary of the revision of February 3, 2001.


1. Subject Matters of Design

The shape, pattern, color, or combination of those in an article or in the parts thereof, which produces an aesthetic impression in the sense of sight to result in expression of creativity can be registered as design. (Design Law, Article 2(i), as revised  as of February 3, 2001.)


2. Requirements for Design Registration

(1) Industrial applicability : Designs must have industrial applicability in order to be registered.

(2) Novelty : Designs may be registered unless they fall under any of the following subparagraphs: (Design Law, Article 5(1)(2))
  1. The design was publicly known or publicly worked in the Republic of Korea or in a
  foreign country prior to the filing of the design application; or,

  2. The design was described in a publication distributed in the Republic of Korea or in a   foreign country prior to the filing of the design application

(3) Creativity
  1. Where a design could easily have been created by a person having ordinary skill in the
  art to which the design pertains, on the basis of a shape, pattern or color or a combination   thereof widely known in the Republic of Korea prior to the filing of the design application, a   design registration shall not be granted for such a design. (Design Law, Article 5(2))

  2. Where a design filed for registration is identical with or similar to a portion of a design   described in the descriptions, drawings, photographs, or samples initially attached to   another application, which was filed prior to said design application, even if it was laid open   the application or published the registration later than the filing date of said design   application, such a design shall not be registered. (Design Law, Article 5(3), newly added   as of February 3, 2001.)


3. Types of Designs (similar designs, designs of a set articles, and secret designs)

(1) Similar designs : The owner of a design right or an applicant for the registration of a design is entitled to obtain the registration of a design which is similar only to his registered design or a design for which a registration is applied as a similar design. (Design Law, Article 7)

(2) Designs of a set articles : In the case of a design relating to articles of two or more kinds that are simultaneously used together as a set of articles, an application for the registration of the design may be filed for one design, provided that the set of articles constitutes a coordinated whole. (Design Law, Article 12, as revised
as of February 3, 2001.
)

(3) Secret designs : An applicant for the registration of a design may request that the design be kept secret for a period which shall be designated in the request and which shall not exceed three years from the date on which the establishment of the design right was registered. (Design Law, Article 13)



4. Firsttofile Rule

Applications filed on different dates or on the same date are the same as the main Principles of Patent vid. Patent Law (Design Law, Aticle 16)


5. Principles of One Application per Design, and One Application per Multiple Design

(1) Principles of one application per design : An application for the registration of a design shall relate to one design only. (Design Law, Article 11(1) and (2))

(2) One application per multiple design : An application for unexamined registration of designs may be made for twenty designs or less (hereinafter referred to as an "application for multiple design registration"), and in this case, a design shall be separately presented therein. (Design Law, Article 11bis, as revised
as of February 3, 2001.)

(3) Subject matters of nonexamination : designs embodied in articles that are classified as B1 class (clothing), C1 class (bedding items, rugs, curtains, etc.), F3 class (paper articles for office use, printed matter, etc.), F4 class (wrapping papers, packaging containers, etc), and M1 class (textiles, plates, ropes, etc.), may be registered without substantive examination. (Design Law, Article 11bis, Enforcement Regulation Article 9(3) and (4))


6. Amendment of Application

(1) Scope of amendment : An applicant for the registration of a design may amend the application provided that the gist of the original application is not changed. (Design Law, Article 18(1))

(2) Period for amendment : An applicant may amend the application before transmittal of the decision to grant registration or within thirty (30) days from the filing date of a demand for trial against ruling of refusal. (Design Law, Article 17 and 18(1), as revised
as of February 3, 2001.)


7. Division of Application

(1) Division of application : A person who has filed an application for registration in violation of one application per design rule, an application for multipledesign registration, or an application for registration of a design for a set of articles, may divide it into two or more applications. (Design Law, Article 19(1), as revised
as of February 3, 2001.)

(2) Period for division : An applicant may divide that application before transmittal of the decision to grant registration, or within thirty (30) days from the filing date of a demand for trial against the ruling of refusal. (Design Law, Article 19(3))


8. Conversion of Application

(1) Between independent design and similar design : An application for registration of an independent design and an application for registration of a similar design may be mutually convertible. (Design Law, Article 20(1) and (2))


(2) Between examined design and unexamined design : An application for unexamined registration of a design may be converted into an application for examined registration, and vice versa. (Design Law, Article 20bis (1))

(3) Period for conversion of application : Conversion of a design application is possible anytime before the ruling to grant registration or a trial decision on the initial application for registration of the design becomes definite. (Design Law, Articles 20(3) and 20bis (3))


9. Priority Claim

(1) Term for claim to priority : A person intending to claim the right of priority based on the treaty shall file an application for registration of the design claiming the right of priority within six (6) months from the filing date of the first application which is the basis for claiming the right of priority. (Design Law, Article 23(1) (2)). Also, a person intending to claim priority must, at the time of filing, specify such claim, the name of the country in which the first application was filed, and the filing date of such application in the application for the registration of a design. (Design Law, Article 23(3))


(2) Period for submitting priority claim documents : A person who has claimed a right of priority shall submit to the commissioner of the Korean Intellectual Property Office a written statement setting forth the filing date of the application, and a copy of the drawing of the design, certified by the government of the country where the first application was filed, within three months from the filing date of the application for registration of a design. (Design Law, Article 23(4)). If such person fails to submit the priority documents within the required time limit, the claim to the right of priority shall lose its effect. (Design Law, Article 23(5))


10. Laying open of Application Requested by Applicant

(1) Laying open of design application : An applicant may request the laying open of his or her application for design, even prior to the registration thereof, and the request for the laying open of application may be made before the initial certified copies of the decision on the application for the design registration is transmitted. (Design Law, Article 23bis (1) (3))


(2) Effects of laying open applications : After an application is laid open, the applicant may give warning to a person, who has commercially or industrially worked the filed design or a design similar thereto, in writing indicating that it is a design of which an application for registration has been filed. And the applicant may demand a person, who has been warned, to pay for compensation an amount of money during a specified period until the time of the registration of the filed design. (Design Law, Article 23ter)


11. Providing information on a design¡¯s unregistrability

With respect to a design as filed (regardless of the status of Laying Open), any person may furnish the commissioner of the Korean Industrial Property Office with information, together with evidence to the effect that the design concerned is unregistrable. (Design Law, Article 235, newly added
as of February 3, 2001.)


12. Decision of Granting A Design Registration and Notification of Reasons for Refusal

Ruling to grant a design registration and Notification of reasons for refusal are the same as the main Principles of Patent vid. Patent Law (Design Law Article 27, 28)


13. Opposition to Registration of Unexamined Design

(1) Opposition to registration of unexamined design : From the date of registration of the establishment of a design right up to three months after the publication of the registration of an unexamined design, any person may file an opposition to the registration, giving reasons why the registration should be revoked . Against a registration of designs by an application for multiple design registration, an opposition may be filed to each or any design of the multiple whole. (Design Law, Article 29bis (1), as revised
as of February 3, 2001.)

(2) Grounds for opposition and submission of evidence : A person filing an opposition to registration of a design without substantial examination must describe or submit the evidence to support his opposition along with his reason for opposition. (Design Law, Article 29bis (2))


14. Registration of Establishment of Design Right and Scope of Protection

(1) Registration of establishment : A design right shall come to force upon registration of its establishment and a design right relating to a similar design shall be incorporated in the design right relating to the principal design. (Design Law, Articles 39 and 42)


(2) Scope of protection of registered design : The scope of protection conferred by a registered design shall be determined by the terms of the specification in the application, the design represented in the drawing, and the explanation of the gist of the design therein, or shown in a photograph, model or sample attached to the application. (Design Law, Article 43, as revised
as of February 3, 2001.)


15. Term of Design Right

The term of a design right shall be fifteen (15) years from the date of registration of its establishment. However, the expiry date of the term of a design right relating to a similar design shall be the expiry date of the term of the design right relating to the principal design. (Design Law, Article 40(1))


16. License of Registered Design (Exclusive, Nonexclusive, and Statutory licenses)

Exclusive, Non exclusive and Statutory licenses are the same as the main Principles of license of patent invention vid. Patent Law (Design Law, Article 47, 49, 50, 51, 52, 58, and 75)


17. Remedies against Design Infringement

Civil remedies and Criminal penalties are the same as the main Principles of Patent Infringement vid. Patent Law (Design Law, Article , 64, 66 and 82, as revised
as of February 3, 2001.)

18. Types and Instances of Design Trials

(1) Types of design trials : There are trial for invalidation of a design registration, trial to confirm the scope of a design right, trial for granting nonexclusive license, trial against ruling of refusal or decision of revocation, trial against decision to reject amendment, request for retrial, and trial for invalidation of correction. (Design Law, Article 68, 69, 70, and 72)


(2) Instances of design trials : The instances of design trials are the same as the instances of patent trials. Mutatis mutandis application of Article 72 of the Patent Law.