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Amendments to Trademark Laws

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Jan 20, 2016 (Newsletter Issue 1/16)
South Korea
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Design Examination Guidelines Amended

The Korean Design Examination Guidelines ("Guidelines") have been amended effective October 1, 2015 to encourage examiners at the Korean Intellectual Property Office ("KIPO") to treat design applications with greater flexibility during examination. Some of the more notable amendments are outlined below.

1. Designs of Sets of Articles
Under the Design Protection Act ("DPA"), if two or more products are used together as a set (i.e., a set of utensils, a set of tea apparatus, and a set of smoking apparatus etc.), the design of the entire set may be registered as a single design as long as the set constitutes a coordinated whole. However, in practice, KIPO examiners usually did not grant registrations for sets of articles unless the set was one of those explicitly listed as an example in the Enforcement Decree of the DPA. The amended Guidelines eliminate this practice and specify that examiners should grant a registration for a set of products if the individual products genuinely constitute a set, the products are all used at the same time, and the set as a whole has a unified design.

2. Single Application for Single Design
This amendment makes clear that an article comprising several different parts that can be physically separated from each other still may be filed as a single design, as long as the entire article is traded in the market as one product.

3. Priority and Amended Drawings
In order to claim priority, the presented drawings must be identical to the drawings submitted in the original priority application. However, because Korea has a number of different formal requirements for drawings compared to other jurisdictions, KIPO often requires foreign applicants to amend the drawings in their design applications. Problems sometime arise in this regard because material amendments to the drawings in a Korean design application are not allowed after the application has been filed, and in practice whether an amendment is "material" has been determined by comparing the amended drawings with the drawings in the Korean design application as filed. As a result, foreign applicants who amend their drawings pursuant to a request from KIPO have often subsequently received an office action for making material amendments to the drawings. The amended Guidelines now recommend that examiners should consider the drawings in the original priority application as well as the drawings in the Korean application as filed when they decide whether or not material changes have been made.

4. Registrability of Screen Images
Under the amended Guidelines, neither the size nor location of a screen image (such as a graphical user interface or icon) is to be considered when determining similarity to other designs.

Further, the creativity of a screen image ordinarily is evaluated based on the claimed portions of the design only (which must be depicted in the drawings with solid lines), but under the amendment, the function or usage of other portions of the drawings (depicted with dotted lines) also can be considered if necessary to fairly evaluate such creativity.