IP is a valuable asset that can support you when doing business overseas. An Australian patent, trade mark, design or plant breeder’s right does not secure your rights outside of Australia. You should consider IP protection in the countries that you are planning on doing business, including manufacturing, or selling products online.
Please note, IP registration and protection can be a complex process, especially in an international context. It is recommended that you seek advice from an IP professional.
South Korea has an estimated population of over 51 million and is the 12th largest economy in the world. In 2017-18, two-way trade in goods and services between Australia and South Korea totalled A$52.3 billion, making South Korea Australia’s fourth largest trading partner. Korean is the official language of South Korea.
IP protection in South Korea
In South Korea you can register IP rights for trade marks, patents, designs, copyright and protection of new plant varieties. The Korea Copyright Commssion oversees copyright, the Seed and Variety Service oversees plant variety protection and all other IP rights are overseen by the Korean Intellectual Property Office (KIPO).
An address for service in South Korea and a local agent or attorney is generally required when seeking IP registration.
South Korea is a member of international agreements for the protection of IP rights as administered through the World Intellectual Property Organization. See below for further details.
- Trade mark applications can be filed directly with KIPO or made through the Madrid System for the international registration of trade marks. Applications can be submitted online.
- When deciding on whether or not to enter South Korea with your trade mark (and ideally before you apply for a trade mark in Australia), you should consider two things when applying for an international application through the Madrid system.
- Firstly, you may wish to search the Global Brands Database to make sure your chosen trade mark is available to be registered.
- Secondly, acceptable claims for goods and services vary across the world. Consider consulting the Madrid Goods and Services Manager database, which outlines what claims are acceptable in various jurisdictions globally.
- Unlike Australia, South Korea has a “first to file” rule for obtaining trade mark rights. This means that if there is a dispute between you and another party over a trade mark, whoever filed for registration first will generally have superior rights, regardless of who developed or first used the trade mark.
- A trade mark registration is valid for 10 years and may be renewed indefinitely for successive 10-year periods upon payment of fees.
- Trade mark registrations may be removed from the register if they are not used within three years of the date of registration and any consecutive three-year period thereafter.
- A trade mark’s validity can generally no longer be challenged after five years from the initial registration date.
- There are other circumstances under which a trade mark may be challenged, cancelled or removed. Please check the relevant requirements prior to application.
- Applications can be made directly to KIPO or can enter through national phase entry via the Patent Cooperation Treaty (PCT). Patents can be filed in English, but must be accompanied by a Korean translation within 14 months of the priority date.
- South Korea also has a "utility model" system, which has similar requirements to a regular patent, but covers ‘a creation of a technical idea using the rules of nature’ and only lasts 10 years from registration.
- Patent protection is for up to 20 years from registration; however fees must be paid throughout that period.
- The Global Patent Prosecution Highway (GPPH) may be used by Australian applicants to speed up the examination process for corresponding patent applications filed in South Korea.
- Applications may be made directly to KIPO.
- Applicants can request in their application to KIPO that the design be kept secret for up to three years.
- A publically disclosed design can still be registered so long as registration occurs within six months of public disclosure.
- Protection is available for up to 20 years, subject to payment of the required fees.
- South Korea is a member of the Hague Agreement and can therefore be designated in an international application where the applicant is able to establish entitlement. Australia is not currently a member of the Hague Agreement.
- Like Australia, copyright arises automatically at the time of creation of an eligible work.
- South Korea also operates a voluntary registration system under which copyright owners may record their copyright. Registrations can be made through the Korea Copyright Commission. The registration assists third parties seeking permission to use the work and may be used as evidence of ownership.
- The term of protection varies depending on the type of work. In general, most published works are protected for the life of the author plus 70 years.
- South Korea has provisions for the protection of new plant varieties and applications are assessed through the Seed and Variety Service.
- A plant is deemed new if a seed or its harvested material has not been sold for use more than one year prior to the application in South Korea, or more than four years anywhere else in the world prior to the application in South Korea.
- Protection lasts for 20 years from registration and 25 years in the case of fruit and forest trees.
Enforcing your IP rights in South Korea
It is your responsibility to protect your IP. You should actively monitor the marketplace for any unauthorised use of your IP.
IP law is complex.If legal action is necessary, you should consult a legal professional who specialises in IP law.
Doing business in South Korea
Before entering the business market in South Korea, there are a number of factors to take into account including culture, politics and business etiquette. You can start by taking a look at the extensive information about doing business in South Korea on the Austrade website.
- Korean Intellectual Property Office
- Korea Copyright Commission
- Seed and Variety Service
- Patent Cooperation Treaty
- Madrid System
- Hague Agreement
- DFAT – Country Brief
- Export Council of Australia
- Professional advice - If you are considering exporting to South Korea, it is recommended that you contact an IP professional experienced in South Korean IP law and trade to advise on local IP, customs and other laws regulating imports and trade in South Korea. Australian IP professionals can facilitate this contact.