Design means the shape, pattern, color or a combination thereof, which invokes an aesthetic impression in the sense of sight.

According to the definition, a design has to be embodied through goods, be expressed with a concrete shape, be able to be recognized through the sense of sight and have an aesthetic impression.  Therefore, the design in the Design Law has close relations with industrial design or product design.

1. Documentation
  1) Power Of Attorney
   2) Drawings or Photos of Perspective view, Front view, Rear view, Left-side view, Right-side view,
   Top view and Bottom view, or a Sample
   3) Name and Address of the creator
   4) Name and Address of the applicant
   5) Priority document, if priority is claimed.

2. Registration Requirements
  1) Industrial Applicability - The industrial applicability means the design is to be applied to a product and shall be manufactured in a mass by a machine as well as by a person.  Therefore, a copyright work, nature itself and the design which is produced to provide a commercial service cannot be patented because they cannot be applied for an industrial purpose.

  2)  Novelty - The novelty means that a design has to be new, which shall not be publicly known or worked in or outside of korea prior to the filing of the application, or which shall not be described in a publication distributed in or outside of Korea prior to the filing of the application.  

  3) Non-obviousness - The shape, pattern, color or a combination thereof of a design shall not be easily created by a person having ordinary skill in the art in which the design pertains.  For example, if a product design comes from a car or airplane and a person designed a toy car or airplane through imitating the shape of it, a design registration shall not be granted to such a design.

  4) First-to-File Rule - Where two or more applications for the registration of a design relating to the same or similar design are filed on different dates, only the applicant filing the application having the earlier filing date may obtain a design registration for the design.  And two or more aplications for the registration of a design relating to the same or a similar design are filed on the same date, only the person agreed upon by all applicants after consultation may obtain a design registration for the design and, if no agreement is reached or no consultation is possible, none of the applicants shall obtain a design registration therefor.

  5) A design registration described in the following items cannot be granted to such a design.
    i) Designs which are identical or similar to the national flag, national emblem, military flags,decorations, orders of merit, badges and medals of public organizations, national flags and national emblems of foreign countries, or characters or indications of international organizations;
    ii) Designs liable to contravene public order or morality; and
    iii) Designs liable to give rise to confusion with respect to articles connected with another person's business.
    iv) Designs indispensible for acquring the function of an article concerned

The term of a design right shall be fifteen(15) years from the date of registration of its establishment.  However, the expiration date of the term of design rights relating to a similar design shall be the same as the expiration date of the term of the design rights relating to the principal design.  And the rights are canceled when the owner does not pay the annuity fee, waive the right, the successor to the rights is absent, a ruling of invalidation becomes final and conclusive and etc.

If an infringement occurs against design rights, the owner of the design rights can take civil remedies such as cessation of the infringement, damage compensation, restoration of the damaged reputation, or return of the profits gained by the infringer as a result of the infringement.  And in case of taking criminal remedies, the court can judge the infringer to be behind bars less than 7 years or pay penalty amount less than 100 million won.

To maintain design rights, the owner shall pay registration fee as a lump sum payment at the time of the registration for the first three (3)-year registration.  Upon the payment of the registration fee, the rights under the Design Law will be established. And from the 4th year, the owner shall pay annuity fee by the due date.  The annuity fee payment can be extended for 6 months from the due date, but the amount will be doubled.  If the owner fails to pay the fee within the 6-month grace period, the rights will be abandoned.

For more detailed information, please visit the website at http://www.kipo.go.kr/ehtml/eInfIndex.html regarding the Design Law of Korean Intellectual Property Office.

 

 

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