Remedies for Infringement of IPR

Actions under the Korean intellectual property laws may be brought for remedies from infringement of intellectual property rights. Unless there are no special provisions in each of the relevant laws, general rules of civil procedures under the Civil Procedure Act are followed. Roughly speaking, remedies in a civil suit include preliminary and/or permanent injunction, compensation of damages, and restitution for damaged reputation.

In a proceeding for grant of preliminary injunction, the court has discretion in deciding whether a hearing is required. The courts generally hold a hearing, unless the plaintiff submits clear and convincing evidence of infringement. The court also generally requires the plaintiff to post a security bond before issuing a preliminary injunction. The courts also generally hold hearings in a proceeding for a grant of permanent injunction.

In most cases of actions for compensation of damages, the plaintiff must prove intent or negligence on part of the infringing party, and the amount of damages caused through infringement. There are of course some presumption clauses relieving the burden of proving them. To secure a claim for the compensation of damages, the plaintiff may seek to attach the assets of the infringer.

Generally, a preliminary attachment order may be obtained quickly without a hearing. As with the preliminary injunction, the court generally requires the plaintiff to post a security bond before issuing a preliminary attachment writ. A writ for preliminary attachment often proves to be effective because it puts pressure on the infringer to settle the case with the plaintiff.

In addition to civil remedies, criminal prosecution can be brought against an infringer of an intellectual property right in conjunction with, or independent of a civil complaint.

As a practical matter, in order to arrange for a police raid, the police or prosecutor generally requires that the accuser provide verified information concerning the place of manufacture of the infringing products and the infringer's inventory. Distinguished from other intellectual property rights, a criminal complaint for trademark infringement by a trademark owner is not necessary for criminal prosecution. However, as a practical matter, a criminal complaint is generally preferred.

Under the above intellectual property laws, an intellectual property right owner or his exclusive licensee is entitled to demand that a person who has infringed or is likely to infringe his right cease and desist from continuing the infringing activities.

In addition, the intellectual property right owner or his exclusive licensee may take measures to prevent the infringement.

Further, the intellectual property right owner or his exclusive licensee is entitled to demand indemnification from a person who willfully or negligently infringed the intellectual property right or the exclusive license right.