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 CHAPTER
V DESIGN RIGHT
Article 39 ーRegistration of Establishment
of Design Right―
(1) A design right shall be effective upon
registration of its establishment.
(2) When the registration fees have been
paid in accordance with Article 31(1), or when
an
exemption from payment of such fees or a
reduction of payment has been granted under
Article 35(1) or (2), the Commissioner of
the Korean Industrial Property Office shall
publish
the following particulars in the Design Gazette:
(ァ) the name and domicile of the owner of
the design right (in the case of a legal entity,
the
title, place of business);
(ア) the registration number of the design;
and
(ィ) the date of registration of the establishment
of the right.
Article 40 ーTerm of Design Right―
(1) The term of a design right shall be fifteen
years from the date of registration of its
establishment. However, the expiration date
of the term of a design right relating to a
similar
design shall be the expiration date of the
term of the design right relating to the principal
design.
(2) Where a design registration is bestowed
to a lawful holder under Article 14 or 15, the
term of the design right under paragraph
(1) shall run from the day following the date
of
registration of the design right previously
filed by the unentitled person.
Article 41 ーEffects of Design Right―
The owner of a design right shall have the
exclusive right to work the registered design
and a
design similar thereto commercially and industrially.
However, where the design right is
subject to an exclusive license, this provision
shall not apply to the extent wherein the
exclusive licensee has the exclusive right
to work the registered design or similar design
under Article 47(2).
Article 42 ーDesign Right Relating to
Similar Designs―
A design right relating to a similar design
as defined in Article 7(1) shall be incorporated
in a
design right relating to the principal design.
Article 43 ーScope of Protection of Registered
Designs―
The scope of protection conferred by a registered
design shall be determined by the terms of
the specification in the application, the
design represented in the drawing, and the
explanation of the intent and purpose of
the design therein, attached to the application
or
shown in a photograph, model or sample attached
to the application.
Article 44 ーLimitations of Design Right―
The effects of a design right shall not extend
to:
(ァ) use of the registered design for the
purpose of research or experiment;
(ア) vessels, aircrafts or vehicles merely
passing through the Republic of Korea or the
machinery, instruments, equipment or other
accessories used therein; or
(ィ) identical products existing in the Republic
of Korea at the time the application for
registration of a design was filed.
Article 45 ーRelationship with Another
Registered Design―
(1) Where the working of a registered design
would utilize another person's registered design
or design similar thereto, patented invention,
registered utility model or registered trademark
under an application filed prior to the filing
date of the application for the registration
of a
design concerned, or where a design right
conflicts with another person's patent right,
utility
model right or trademark right under an application
filed prior to the filing date of the
application for registration of a design
concerned, the owner of the design right or
exclusive
or non-exclusive licensee shall not work
the registered design commercially or industrially
without the consent of the owner of the earlier
patent right, utility model right or trademark
right, except where Article 70 applies.
(2) Where the working of a design similar
to a registered design would utilize another
person's registered design or design similar
thereto, patented invention, registered utility
model or registered trademark under an application
filed prior to the filing date of the
application for the registration of a design
concerned, or where a design right of the design
similar to the registered design conflicts
with another person's registered design, patent
right, utility model right or trademark right
under an application filed prior to the filing
date of
the application for registration of the design
concerned, the owner of the design right or
exclusive or non-exclusive licensee shall
not work the design similar to the registered
design
commercially or industrially without the
consent of the owner of the earlier patent right,
utility
model right or trademark right, except where
Article 70 applies.
(3) Where the working of a registered design
or a design similar thereto would utilize or
conflict with another person's copyright,
effective prior to the filing date of the application
for
registration of a design concerned, the owner
of the design right or exclusive or
non-exclusive licensee shall not work the
registered design or design similar thereto
commercially or industrially without the
consent of the owner of the copyright.
Article 46 ーAssignment and Joint Ownership
of Design Right―
(1) A design right may be assigned. However,
a design right relating to a principal design
and a design right relating to a similar
design shall be assigned together.
(2) A joint owner of a design right may neither
assign his share nor establish a pledge upon
it without the consent of all the other joint
owners.
(3) Each of the joint owners may, except
as otherwise agreed by a contract among all
the
joint owners, work the registered design
or similar design by himself without the consent
of
the other joint owners.
(4) A joint owner may grant neither an exclusive
license nor a non-exclusive license under
the design right without the consent of all
the other joint owners.
(5) A design right which is registered as
a multiple design may be divided and transferred
for
each design.
Article 47 ーExclusive License―
(1) The owner of a design right may grant
an exclusive license on the design right.
(2) An exclusive licensee who has been granted
an exclusive license under paragraph (1)
shall have the exclusive right to work the
registered design or design similar thereto
commercially and industrially, to the extent
provided for in the license contract.
(3) An exclusive licensee may not transfer
the license without the consent of the owner
of
the design right, except where it is transferred
together with the business in which it is
worked, or in the case of inheritance or
other general succession.
(4) An exclusive licensee may establish a
pledge or grant a non-exclusive license on the
exclusive license only with the consent of
the owner of the design right.
(5) The provisions of Article 46(2) to (4)
shall apply mutatis mutandis to exclusive licenses.
Article 48 Deleted
Article 49 ーNon-exclusive License―
(1) The owner of a design right may grant
a non-exclusive license on his design right.
(2) A non-exclusive licensee shall have the
right to work the registered design and a design
similar thereto commercially and industrially
to the extent provided for in the Design Law
or
by the license contract.
(3) The provisions of Article 46(2) and (3)
and Article 102(4) to (6) of the Patent Law
shall
apply mutatis mutandis to non-exclusive licenses.
Article 50 ーNon-exclusive License by
Virtue of Prior Use―
Where, at the time of filing of an application
for the registration of a design, a person has
created a design which is identical or similar
to the design in an existing application, without
having prior knowledge of the design in the
application, or has learned how to create the
design from another person, and has been
working the design commercially or industrially
in
the Republic of Korea, in good faith, or
has been making preparations therefor, shall
have a
non-exclusive license on that registered
design or design similar thereto. Such license
shall
be limited to the design which is being worked,
or for which preparations for working have
been made, and to the purpose of such working
or preparations.
Article 51 ーNon-exclusive License Due
to Working Prior to Registration
of Demand for Invalidation Trial―
(1) Where a person falling within any of
the following subparagraphs has been working
a
design or a design similar thereto, commercially
or industrially in the Republic of Korea, in
good faith, or has been making preparations
therefor, prior to the registration of a request
for
an invalidation trial of the design registration
concerned, without knowing that the design
registration is subject to invalidation,
such person shall have a non-exclusive license
on that
design right or on the exclusive license
existing at the time when the design registration
was
invalidated, but such non-exclusive license
shall be limited to the design which is being
worked or for which preparations for working
are being made and to the purpose of such
working or preparations:
(ァ) the original owner of the design right,
where one of two or more design registrations
granted for the same or a similar design
has been invalidated;
(ア) the original owner of the design right,
where his design registration has been invalidated
and a design registration for the same or
a similar design has been granted to an entitled
person;
(ィ) in the cases referred to in subparagraphs
(i) and (ii), a person who, at the time of
registration of the request for an invalidation
trial of the design right that has been invalidated,
has been granted an exclusive or non-exclusive
license, or non-exclusive license on the
exclusive license, and such license has been
registered. However, a person falling under
Article 118(2) of the Patent Law as applied
under Article 61 of the Design Law is not required
to register the license.
(2) A person who has been granted a non-exclusive
license in accordance with paragraph (1)
shall pay reasonable remuneration as consideration
to the owner of the design right or the
exclusive licensee.
Article 52 ーNon-exclusive License After
Expiration of Design Right, etc.―
(1) Where a design similar to a registered
one conflicts with a design right which has
been
registered prior to or on the date of application
for registration of the design (hereinafter
referred to as a "primary design right"),
the owner of the primary design right shall
have a
non-exclusive license with respect to the
design right not exceeding the scope of the
primary
design right when the term of primary design
right expires, or has non-exclusive license
with
respect to an exclusive license of a design
right which exists at the time when the term
of
the design right expires.
(2) Under paragraph (1), an exclusive licensee
of a primary design right which exists at the
time when the term of the primary design
right expires, or a non-exclusive licensee under
Article 118(1) of the Patent Law, as applied
mutatis mutandis in accordance with Article
61
of the Design Law, has a non-exclusive license
with respect to a design right not exceeding
the scope of the primary design right, or
has a non-exclusive license with respect the
exclusive license of the design right which
exists at the time when the term of primary
design right expires.
(3) The provisions of paragraphs (1) and
(2) shall apply mutatis mutandis to cases where
a
registered design or a design similar thereto
conflicts with a patent right or a utility model
right which has been registered prior to
or on the date of application for registration
of design,
and where the term of the patent right or
utility model right expires.
(4) The owner of a non-exclusive license
pursuant to the provisions of paragraph (2)
(including cases in which the provisions
of paragraph (3) apply mutatis mutandis) shall
pay
reasonable remuneration to the owner of the
design right or the exclusive licensee in relation
to the design right.
Article 53 ーAbandonment of Design Right―
The owner of a design right may abandon his
design right.
Article 54 ーRestriction on Abandonment
of Design Right, etc.―
(1) The owner of a design right shall not
abandon his design right without the consent
of the
exclusive licensee, pledgee, or non-exclusive
licensee under Articles 47(4) or 49(1) of the
Design Law or Article 39(1) of the Patent
Law as applied mutatis mutandis under Article
24
of the Design Law.
(2) An exclusive licensee shall not abandon
his exclusive license without the consent of
the
pledgee or non-exclusive licensee under the
provisions of Article 47(4).
(3) A non-exclusive licensee shall not abandon
his non-exclusive license without the consent
of the pledgee.
Article 55 ーEffect of Abandonment―
The design right, or exclusive or non-exclusive
license thereon, shall be extinguished as of
the time of abandonment of a design right
or of an exclusive or non-exclusive license.
Article 56 ーPledge―
Where a design right or an exclusive or non-exclusive
license is the subject of a pledge, the
pledgee may not work the registered design
except as otherwise provided by contract.
Article 57 ーSubrogation for Right of
Pledge―
A pledge may be exercised against the remuneration
provided for under the Design Law or
against remuneration or goods to be received
for the working of the design right; however,
an
attachment order shall be obtained prior
to the payment or delivery of the remuneration
or
goods.
Article 58 ーNon-exclusive License When
Transferring the Design Right by
Exercising the Pledge Right―
Where the owner of a design right has worked
the registered design or similar design which
is the subject of a pledge prior to the establishment
of the pledge, and the design right is
subsequently sold at auction, etc., he shall
have a non-exclusive license on the registered
design right; in such case, the owner of
the design right shall pay reasonable remuneration
to the pledgee.
Article 59 ーExtinguishment of Design
Right in Absence of Successor―
A design right shall be extinguished if,
at the time of succession, no successor exists.
Article 60 ーReport on Working of Registered
Design―
The Commissioner of the Korean Industrial
Property Office may require the owner of a design
right, or exclusive or non-exclusive licensee,
to report upon whether the registered design
has or has not been worked and the extent
of such working, etc.
Article 61 ーMutatis Mutandis Application
of Provisions of the Patent Law―
The provisions of Articles 101, 106, 117
and 118 of Patent Law shall apply mutatis mutandis
to design rights.
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