Understanding the Trademark Act of the Republic of Korea www.kipo.go.kr 2007 Korean Intellectual Property Office Understanding the Trademark Act of the Republic of Korea 2007 TABLE OF CONTENTS TABLE OF CONTENTS PA RT I GEN ERA L ········································································································ 3 CHAPTER I PURPOSE OF THE TRADEMARK ACT ············································ 3 SEC. 1 LEGISLATIVE INTENT ··············································································· 3 SEC. 2 SPECIFIC DETAILS OF THE PURPOSE ················································· 3 I. Protection of trademarks ························································································ 3 1. Scope of ‘trademark’ ························································································· 3 2. Substance of protection ····················································································· 3 3. Scope of protection ···························································································· 3 II. Pursue to maintain the goodwill of trademark users ······································· 4 1. Trademark users ································································································· 4 2. Pursue to maintain goodwill ············································································· 4 III. Contribute to the development of industry ······················································ 4 IV. Protect the interests of consumers ····································································· 4 V. Prevent unfair competition ··················································································· 5 CHAPTER II COVERAGE OF THE TRADEMARK ACT ······································ 6 SEC. 1 TRADEMARK ································································································ 6 I. The notion of trademark ······················································································· 6 1. Trademark as in the generally accepted view ················································ 6 2. The trademark as protected under the Trademark Act ································· 6 II. Types of trademarks ····························································································· 6 1. Constitutional categorization ·············································································· 6 2. Functional categorization ··················································································· 7 3. Categorization by registration ··········································································· 7 III. Bordering concepts of trademark ······································································· 7 1. Trade name ········································································································· 7 2. Geographical indications ···················································································· 7 3. Domain names ···································································································· 8 SEC. 2 FUNCTIONS OF TRADEMARKS ······························································ 8 I. Introduction ·············································································································· 8 II. Primary functions of trademarks ········································································· 9 1. Distinguishing function ······················································································ 9 2. Source indication function ················································································· 9 3. Quality assurance function ················································································ 9 i TABLE OF CONTENTS III. Secondary functions of trademarks ···································································· 9 1. Advertising and marketing function ································································· 9 2. Property function ································································································ 9 3. Protective function ··························································································· 10 4. Competitive function ························································································ 10 CHAPTER III SERVICE MARKS, COLLECTIVE MARKS AND BUSINESS EMBLEMS ···························································································· 11 SEC. 1 SERVICE MARKS ······················································································· 11 I. Overview ················································································································ 11 1. Significance ······································································································· 11 2. Institutional intent ····························································································· 11 II. Registration requirements ···················································································· 11 1. Required of valid service marks ···································································· 11 2. Distinctive character ························································································· 12 3. No grounds for unregistrability ······································································ 12 4. A mark being used or to be used for the provision of services ············· 12 SEC. 2 COLLECTIVE MARKS ·············································································· 12 I. Overview ················································································································ 12 1. Significance ······································································································· 12 2. Institutional intent ····························································································· 12 II. Characteristics ······································································································ 13 1. Registration requirements ················································································· 13 2. Application ········································································································ 13 3. Modifiability of applications ··········································································· 13 4. Separation between the rights of holders and users ··································· 13 5. Restrictions on transfer and licensing ··························································· 14 6. Grounds for revocation unique to registered collective marks ··················· 14 SEC. 3 BUSINESS EMBLEMS ··············································································· 14 I. Introduction ············································································································ 14 1. Significance ······································································································· 14 2. Institutional intent ····························································································· 14 II. Characteristics ······································································································ 15 1. Additional provisions for application and registration procedures ············· 15 2. Modifiability of applications ··········································································· 15 3. Restrictions on property rights ······································································· 15 ii TABLE OF CONTENTS 4. Effect of business emblem rights ·································································· 15 5. Registration of trademarks and service marks in relation to incidental activities ············································································································· 15 PART II SUBSTANTIVE ASPECTS OF THE ACT ·········································· 19 CHAPTER I REGISTRATION REQUIREMENTS OF TRADEMARKS ··············· 19 SEC. 1 REGISTRABLE TRADEMARKS ····························································· 19 I. Overview ················································································································ 19 II. Distinctiveness ······································································································ 19 1. Significance ······································································································· 19 2. A theory on the registrability of trademarks ··············································· 19 III. Non‐distinctive marks ························································································ 20 1. Generic‐term marks ·························································································· 20 2. Generic trademark ···························································································· 21 3. Descriptive marks ····························································································· 23 4. Famous geographical names ··········································································· 26 5. Common surnames and designations ····························································· 28 6. Simple and common marks ············································································