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   Letter No.12 (2003-9-25)

Patent News,   Search News,   Patyellow News  

Patent News

Newly Acclaimed IP Rights in KOREA (Ⅱ)

1. Computer Programs

In Korea, computer programs can be protected under the Patent Law or the Computer Program Protection Law (CPP Law) which forms as part of the Copyright Law.

(1) Protection under the CPP (Copyright) Law

Korean Copyright Law includes 'computer programs' within the definition of a creative work. (Article 4, section 1, subsection 9) Article 4, section 2 of the Law allows enactment of new laws on computer programs on a need basis and current CPP Law, which is governed by the Ministry of Information & Communication, was enacted on December 31, 1986 (Law # 3920) to satisfy the growing demand. In case of the protection of computer programs under the domestic copyright law, the scope of protection of the work is bound to identical programs, and thus places a limit on the protection of a program inventor.

(2) Protection under the Patent Law

Most concerned area in protecting computer programs under the Patent Law is whether a computer program falls within the definition of "technological ideas using the rules of nature." (Article 2, Patent Law) Computer programs are simply mimicking human brain functions as mental/intellectual means or a process. It is not an invention based on rules of nature, but essentially a calculation method and therefore wasn't subjected to protection under the patent law in the past.

However, a) to challenge the domination of computer technology by US, Japan and other developed countries where movement towards granting patent rights on computer programs are spreading due to speedy development of the software industry; and b) to promote domestic development of technology related to computer programs, Korea revised Computer Related Invention Examination Standards and applied it to all applications made on or after August 1, 1998.


2. Data Base

From a traditional intellectual property perspective, technical aspects of the database shall be protected under the Patent Law, whereas the contents of the database shall be protected under the Copyright Law. However, protection of database is entering into a new phase because a) the division between "contents(copyright)" and "technological idea(patent right)" of the database is becoming ambiguous like in the case of multi-media database; b) European Union initiated strong movement to alleviate 'creativity' element of the copyrights; and c) attempts have been made to protect the functionality of the database rather then means of expression which also is a basic element of the copyright.

(1) Protection under the Patent Law

Database protection under the patent right is to find a constructive method which defines relationship between structure and functionality of the data and to protect its technological ideas that exists within construction or search method of the database. In such cases, basic elements of the patent right such as creativity, industrial utility, novelty and inventive step will also be applied in order to examine the nature of the database.

In Korea, patent application on database began in 1993 and registration in 1997. Although database applications are limited in numbers, it is easy to predict that it will soon become a major player in the whole of patent applications considering the speed of its development and the fact that a final destination for all computer networking are database services. It is worthwhile to note that when the total number of patent applications decreased during the 98' recession, database related applications actually increased by 30%.

(2) Other protections

Korea protects database under both Copyright Law and Online Digital Contents Industry Development Law (ODCID Law). Korea, in order to protect database that are excluded from the copyrights due to lack of creativity, enacted ODCID Law on July 14 2002. Since the enactment, any database with creativity can be protected under both Laws, but database without creativity can only be protected under the ODCID Law.

3. Internet Domain Names

The current issue in the protection of intellectual property rights in cyberspace is the deception and confusion created between and from the person of the real world and that of the cyberspace. The specific term of 'Cybersquatter' is referred to as a person who registers domain names that are same or similar to a well-known and famous mark of another without authorization.

In Korea, the problem of cybersquatting is dealt under the Trademark Law and Unfair Competition Law.

Under the Trademark Law, the use of the domain name can be enjoined or its registration be canceled if the owner of the domain name establishes a website and undertakes acts that are considered infringing the trademark or service mark rights of another. On the other hand, under the Unfair Competition Law, any acts causing confusion or deception to the well-known or famous marks will be considered as an unfair competitive act warranting injunction against such act. As the Korean Unfair Competition Law embraces the Dilution theory, acts not deeming to cause confusion may nevertheless be enjoined provided there is bad faith involved.

4. Geographical Markings

(1) Definition of Geographical Markings

According to TRIPs Agreement, the geographical marking is referred to as an indication of the territory or region where a product is produced and a certain quality or product's fame develops from its geographical origin. Well known examples of them are Champagne, Cognac, Tequila, and so on.

(2) Protection of Geographical Markings under WTO/TRIPs

In WTO/TRIPs Agreement, the protection of geographical markings can be divided into two main categories of general geographical markings and of wines and spirits. As for the general geographical markings, parties acceded to WTO are requested that they enact laws to reject or invalidate trademarks that inappropriately uses such markings as to create confusion among public. As for protection of wines and spirits, parties are requested to reject or invalidate trademarks that inappropriately use geographical markings irrespective of whether confusion is caused or not.

(3) Protection of Geographical Markings in Korea

In Korea, according to WTO/TRIPs, the geographical markings are protected under the Trademark Law, Unfair Competition Law, and Trade Secret Law. The Trademark Law prohibits registration of geographical markings as a trademark. Both Unfair Competition Law and Trade Secret Law prohibit use of such markings by anyone other than those authorized to use them. Especially, for wines and spirits, specific provision is made to the Trademark Law rejecting any attempts to register their geographical markings even though indication not to confuse the public is made on the product or the mark itself.


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IP Application Intro.

We work with Techvil Patent & Law Firm which is one of the leading Korean intellectual property firms for IP application matters. Techvil was found by patent and trademark attorneys who were primary examiners in Korean Intellectual Property Office.
We remain abreast of the rapidly changing legal environments through the close contact with government agencies, currently available information services, and foreign associates. We are always ready to provide our clients with high quality professional services.



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