Design is defined as “a shape, pattern, color, or a combination of these, in an article which produces an aesthetic impression on the sense of sight” in the Korean Design Protection Act.
Under the recent amendment to the Enforcement Regulation of the Design Protection Act, drawing does not need to be prepared strictly according to the orthographical method. Therefore, even only one drawing can be submitted for a design application, if the contents of the design and the entire shape to be registered are clearly specified in such single drawing. Drawings may also be submitted in three-dimensional image files, e.g., in DWG (Drawing), DWF (Design Web Format) or 3DS (3D studio) file formats.
Designs usually have short life cycles and tend to follow the current trends. Therefore, in response to the request of applicants to expedite the procedure for the registration of designs, the KIPO introduced the non-substantive examination system for short-term life-cycle products. The goods subject to an application for an unexamined design registration have been recently expanded to ten classifications.
Under this system, applicants may acquire the registration within 2 or 3 months from the filing date after inspection of only perfunctory matters. For examination-free goods of the same class, up to twenty designs can be filed as a single application (“Multi-design application”). Post-grant opposition procedure is applied to these applications.
In order to provide an applicant with convenience and more opportunities for registration, the Design Protection Act introduced a re-examination procedure which enables the applicant to file a request for a re-examination if he receives a rejection due to the drawing in the application without having to file a Notice of Appeal to the IPT. This re-examination procedure is available for design applications filed after July 1, 2009.
Even though the applications under the non-substantive examination system are not examined substantively, the requirements for the registration and the effects of rights are the same as those under the substantive examination system.
Registrations under the non-substantive examination system which do not meet the requirements will be invalidated through the post-grant opposition or the invalidation trial.
In addition, an applicant for a design registration may demand that the design be kept secret for a period designated in the demand, provided that the period does not exceed three (3) years from the date the design right is registered. Therefore, the applicant may choose the proper time when the design shall be known to the public.
Considering the above characteristics of a design, the publication of a design application can be allowed even before its registration upon the request of the applicant.
After the publication of a design application, an applicant may demand a person who has commercially or industrially worked the design to pay compensation in an amount of money equivalent to what he would normally receive for the working of the design.
Meanwhile, the owner of a design right or an applicant for a design registration is entitled to the registration of a design which is similar to his registered design or to a design for which he has applied for registration (generally referred to as a similar design).
In addition, a design of two or more articles that are in use as a set (e.g., a set of fork, knife and spoon, a set of tea apparatus, a set of washing kit, a set of golf clubs, and a set of purse and belt, etc.) may be applied for registration in one application when the articles have uniformity as a whole set, referred to as a design of a set of articles.
The Partial Design Registration System has been adopted for a wider scope of protection for industrial designs. Therefore, parts of an article such as the heel of socks and the grip of a cup can be protected as a registered design.
The term of a design right is fifteen (15) years from the date of registration thereof and the expiry date of the design right of a similar design is the expiration date of the basic design.