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CHAPTER ゴ TRADEMARK RIGHT
Article 41 ーRegistration of Establishment
of Trademark Right―
(1) A trademark right shall come into effect
upon registration of its establishment.
(2) The Commissioner of the Korean Industrial
Property Office shall authorize the registration
of the establishment of the trademark right.
When the trademark registration fees have been
paid in accordance with Article 34(1).
Article 42 ーTerm of Trademark Right―
(1) The term of a trademark right shall be
10 years from the date of registration of its
establishment.
(2) The term of a trademark right may be
renewed for an additional 10 years upon making
an application for the registration for the
renewal of its term.
Article 43 ーApplication for Registration
for the Renewal of Term―
(1) Any person desiring registration for
the renewal of the term of a trademark right
under Article 42(2) shall submit an application
to the Commissioner of the Korean Industrial
Property Office, including the following:
(ァ) requirements under Article 9(1) (ァ),
(ア), (イ), (ウ) and (ェ); and
(ア) the registration number of the trademark
concerned.
(2) The application for registration for
the renewal of term of a trademark right shall
be filed within one year prior to the date of
expiration of the term of the trademark right.
However, a person who fails to apply for registration
for the renewal of term of a trademark right
within this period, may do so within six months
after the expiration date of the trademark right.
(3) Where a trademark right is owned jointly,
all joint owners shall jointly file an application
for registration for the renewal of the term.
(4) In addition to the provisions of paragraphs
(1)-(3) of this Article, all other necessary
matters required to file applications for registration
for the renewal of term of a trademark right
shall be prescribed by the Ordinance of the
Ministry of Commerce, Industry and Energy.
Article 44 ーDivision of Application for
Registration for Renewal of Term of
Trademark Right―
(1) Where the designated goods of a registered
trademark cover two or more goods, the application
for registration for renewal of term of a trademark
right may be divided into each of the goods.
(2) Where, in an application for registration
for renewal of term of a trademark right under
Article 43(1), the applicant designates two
or more goods, he may divide the application
into two or more applications within the period
of time allowed for amendment as provided for
in Article 14.
(3) A divisional application for registration
for renewal of term under paragraph (2) under
this Article shall be deemed to have been filed
at the time of filing of the original application
for registration for renewal of term.
Article 45 ーRuling of Refusal of Application
for Registration for Renewal of Term and
Notification of Reasons
for Refusal―
(1) The examiner shall make a ruling of refusal
for an application for registration for renewal
of term of a trademark right where it falls
under any one of the following subparagraphs:
(ァ) deleted
(ア) the applicant is not the owner of the
trademark right concerned;
(ィ) the application is in violation of Article
43(2);
(イ) deleted
(ゥ) deleted
(ウ) Where the designated goods for which
the application for renewal registration of
the term of the trademark right is not the designated
goods of such registered trademark, or where
the designated goods are not in conformity with
the categories of goods as determined by the
Ordinance of the Ministry of Commerce, Industry
and Energy.
(2) Where the examiner intends to render
a ruling of refusal for an application for renewal
of term of a trademark registration under paragraph
(1) of this Article, the examiner shall notify
the applicant of the reasons for the refusal
and give the applicant an opportunity to submit
Applicant's arguments in writing within the
designated time limit.
Article 46 ーEffects of Application for Registration
for Renewal of Term of a Trademark Right, etc.―
(1) Where an application for registration
for renewal of term of a trademark right has
been filed within the period provided for in
Article 43(2), the term of the trademark right
shall be deemed to have been renewed, except
where a ruling of refusal thereof has become
final and conclusive.
(2) The registration for renewal of term
of a trademark right shall commence on the day
following the date of expiration of the original
registration.
Article 47 ーApplication for Supplementary
Registration of Designated Goods―
(1) The owner of a trademark right or an
applicant for the registration of a trademark
right may obtain supplementary registration
of designated goods to be added to the designated
goods of the registered trademark or to the
application for the registration of a trademark.
(2) A person intending to obtain supplementary
registration of designated goods under paragraph
(1) of this Article shall submit an application
for supplementary registration of designated
goods to the Commissioner of the Korean Industrial
Property Office including the following:
(ァ) Requirements under Article 9(1)(ァ)
to (ィ) and (ゥ) to (ェ);
(ア) the registration number of the trademark
or the number of the application for the registration
of a trademark; and
(ィ) the supplementary goods to be designated
and the corresponding class of the classification.
Article 48 ーRuling of Refusal of Application
for Supplementary Registration of Designated
Goods and Notification of Reasons for Refusal―
(1) Where an application for supplementary
registration of designated goods falls under
any of the following subparagraphs, the examiner
shall render a ruling of refusal thereof:
(ァ) the application falls under any one
of the subparagraphs of Article 23(1);
(ア) the applicant is not the owner of the
trademark right or the applicant for registration
of the trademark concerned;
(ィ) the trademark for the application is
not identical with the trademark registered
or the trademark for which an application for
registration has been filed; or
(イ) the right under the registered trademark
has expired or the application for registration
of a trademark has been withdrawn, abandoned
or invalidated, or a ruling of refusal of the
application has become final and conclusive.
(2) If the examiner intends to render a ruling
of refusal for an application for supplementary
registration of designated goods under paragraph
(1) of this Article, the examiner shall notify
the applicant of the reasons for the refusal
and give the applicant an opportunity to submit
Applicant's arguments in writing within the
designated time limit.]
Article 49 ーMutatis Mutandis Application
of Provisions of the Patent Law―
(1) Articles 10(1), 13, 14, 16, 17, 22 and
30 to 32 of the Trademark Law and Article 148(ァ)
- (ゥ), (ェ) of the Patent Law shall apply mutatis
mutandis to applications for registration of
renewal of term of a trademark right.
(2) Articles 10(1), 13 - 17, 20 - 22 and
24 - 32 of the Trademark Law, Articles 148(1)
(ァ) - (ゥ), (ェ) and 157 of the Patent Law
and Articles 133, 271 and 339 of the Code of
Civil Procedure shall apply mutatis mutandis
to applications for supplementary registration
of designated goods.
Article 50 ーEffects of Trademark Right―
The owner of a trademark right shall have
the exclusive right to use the registered trademark
with respect to the designated goods. However,
in accordance with Article 55(3), where the
trademark right is the subject of an exclusive
license, this provision shall not apply to the
extent in which the licensee has the exclusive
right to use the registered trademark.
Article 51 ーLimitations of Trademark Right―
The effects of the trademark right shall
not extend to the following:
(ァ) trademarks indicating, in a common way,
a person's own name, title or trade name, portrait,
signature, seal, famous pseudonym, professional
name or pen name, or a famous abbreviation thereof;
however, this provision shall not apply where,
after registration of the establishment of the
trademark right, such mark has been used with
the intention of violating the rules of fair
competition;
(ア) trademarks indicating, in a common way,
the common name, origin, place of sale, quality,
raw materials, efficacy, use, quantity, shape
or price of the designated goods concerned or
goods similar thereto, or the method or time
of manufacturing, processing or use of such
goods; and
(ィ) trademarks customarily used on the designated
goods or goods similar thereto, and marks consisting
of famous geographical appellation or their
abbreviations or of a map.
(イ) trademarks consisting solely of three-dimensional
shapes essential to secure the functions of
goods requiring trademark registration or their
packaging.
Article 52 ーExtent of Protection of Registered
Trademark, etc.―
(1) The extent of protection conferred by
a registered trademark shall be determined on
the basis of the trademark reproduced in the
documents accompanying the application for registration
of a trademark.
(2) The extent of protection conferred to
the designated goods shall be determined on
the basis of the goods listed in the documents
accompanying the application for registration
of a trademark.
Article 53 ーRelationship with Another Design
Right, etc.―
When the use of a registered trademark on
the designated goods conflicts with another
person's patent right, utility model right and/or
design right which have been applied for prior
to the date of such application for the registration
of the trademark, or with another person's copyright
which has been in effect prior to that date,
the owner of the trademark right, or the exclusive
or nonexclusive licensee, shall not use the
registered trademark on the portion of the designated
goods giving rise to the conflict without a
license from the owner of the earlier patent
right, utility model right, design right or
copyright.
Article 54 ーAssignment and Joint Ownership
of Trademarks, etc.―
(1) A trademark right may be assigned separately
for each of the designated goods. In such case,
rights with respect to similar designated goods
shall be assigned together with the assignment
of the trademark.
(2) to (4) Deleted.
(5) A joint owner of a trademark right may
neither assign his share nor establish a pledge
upon it without the consent of all the other
joint owners.
(6) A joint owner may grant neither an exclusive
nor a nonexclusive license of the trademark
right without the consent of all the other joint
owners.
(7) A business emblem right under Article
2(1)(イ) may not be assigned;
however, this provision shall not apply where
the business emblem is assigned together with
the business.
(8) A trademark right registered under the
provisions of Article 7(1)(ィ) may not be assigned;
however, this provision shall not apply where
it is assigned together with the business relating
to the mark as referred to in the principal
sentence of Article 7(1)(ィ).
(9) A collective mark right may not be transferred;
however, in the case of a merger of a legal
entity, the collective mark may be assigned
with the authorization of the Commissioner of
the Korean Industrial Property Office.
(10) No pledge right shall be established
in connection with the business emblem right
or the trademark right and the collective mark
right under the provisions of Article 7(1) (ィ).
Article 54bis ーDivision of Trademark Right―
(1) Where there are two or more designated
goods under one trademark right, the trademark
right may be divided for each of such designated
goods.
(2) Where a request for an invalidation trial
is made under Article 71(2), the division under
paragraph (1) of this Article may be made until
the decision of the invalidation trial becomes
final and conclusive even if the trademark right
expires.
Article 55 ーExclusive License―
(1) The owner of a trademark right may grant
an exclusive license on the trademark right.
(2) An exclusive license may not be granted
in relation to a business emblem or a collective
mark right.
(3) An exclusive licensee who has been granted
an exclusive license under paragraph (1) of
this Article, shall have the exclusive right
to use the registered trademark on the designated
goods to the extent provided for in the license
agreement.
(4) An exclusive licensee shall indicate
his own name or title on the goods.
(5) An exclusive licensee may not assign
the license without the consent of the owner
of the trademark right, except in the case of
inheritance or other general succession.
(6) An exclusive licensee may establish a
pledge or grant a nonexclusive license on the
exclusive license only with the consent of the
owner of the trademark right.
(7) Article 54(5) and (6) shall apply mutatis
mutandis to exclusive licenses.
Article 56 ーEffects of Registration on Trademark
Right and Exclusive License―
(1) The following shall have no effect unless
they are registered:
(ァ) the transfer (except in the case of
inheritance or other general succession), modification,
extinguishment by abandonment, renewal of term
of a trademark right, supplement to designated
goods or restriction on the disposal thereof;
(ア) the grant, transfer (except in the case
of inheritance or other general succession),
modification or extinguishment by abandonment
of an exclusive license, or restriction on the
disposal thereof; or
(ィ) the establishment, transfer (except
in the case of inheritance or other general
succession), modification or extinguishment
by abandonment of a pledge on a trademark right
or exclusive license, or restriction on the
disposal thereof.
(2) Inheritance of, or other general succession
relating to a trademark right, exclusive license
and/or pledge under paragraph (1) of this Article
shall be notified without delay to the Commissioner
of the Korean Industrial Property Office.
Article 57 ーNon-exclusive License―
(1) The owner of a trademark right may grant
to others a non-exclusive license on his trademark
right.
(2) A non-exclusive licensee who has been
granted a non-exclusive license under paragraph
(1) of this Article shall have the right to
use the registered trademark on the designated
goods to the extent provided for in the license
agreement.
(3) A non-exclusive license may not, except
in the case of inheritance or other general
succession, be transferred without the consent
of the owner of the trademark right (or the
owner of the trademark right and the exclusive
licensee in the case of a non-exclusive license
on an exclusive license).
(4) A pledge may not be established on a
non-exclusive license without the consent of
the owner of the trademark right (or the owner
of the trademark right and the exclusive licensee
in the case of a non-exclusive license on an
exclusive license).
(5) Articles 54(5) and 55(2) and (4) shall
apply mutatis mutandis to non-exclusive licenses.
Article 58 ーEffects of Registration of Non-exclusive
License, etc.―
(1) The following shall have no effect on
any third parties unless they are registered:
(ァ) the grant, transfer (except in the case
of inheritance or other general succession),
modification, extinguishment by abandonment
of a non-exclusive license, or restriction on
the disposal thereof;
(ア) the establishment, transfer (except
in the case of inheritance or other general
succession), modification, extinguishment by
abandonment of a pledge on a non-exclusive license,
or restriction on the disposal thereof.
(2) Where a non-exclusive license has been
registered, it shall also be effective against
any person who subsequently acquires the trademark
right or an exclusive license.
(3) Inheritance, or other general succession
relating to a non-exclusive license or a pledge
under paragraph (1) of this Article shall be
notified without delay to the Commissioner of
the Korean Industrial Property Office.
Article 59 ーAbandonment of Trademark Right―
The owner of a trademark right may abandon
his trademark right for any one of the designated
goods.
Article 60 ーRestriction on Abandonment of
Trademark Right, etc.―
(1) The owner of a trademark right cannot
abandon his trademark right without the consent
of the exclusive or non-exclusive licensee(s)
or pledgee(s).
(2) An exclusive licensee cannot abandon
his exclusive license without the consent of
the pledgee(s) or non-exclusive licensee(s)
under Article 55(6).
(3) A non-exclusive licensee cannot abandon
his non-exclusive license without the consent
of the pledgee(s) under Article 57(4).
Article 61 ーEffect of Abandonment―
Where a trademark right, an exclusive or
non-exclusive license, or a pledge has been
abandoned, the trademark right, exclusive or
non-exclusive license or pledge shall be extinguished
as of the time of abandonment.
Article 62 ーPledge―
Where a pledge has been established for the
purposes of a trademark right or an exclusive
or non-exclusive license, the pledgee may not
use the registered trademark.
Article 63 ーSubrogation for Right of Pledge―
A pledge may be exercised in relation to
the remuneration provided for under this Law
or goods to be received for the use of the trademark
right; however, an attachment order shall be
obtained prior to the payment of the remuneration
or the delivery of the goods.
Article 64 ーExtinguishment of Trademark
Right―
Where an application for the transfer of
the registration of a trademark right is not
filed by a successor in title within three years
following the death of the original owner of
the trademark right, such trademark right shall
be extinguished as of the date following the
expiration of three years from the date of the
death of the original owner of such trademark
right.
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