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Trademark Law ( 07/01/2001 : Revised Trademark Law )

CHAPTER I  GENERAL PROVISIONS

Article 1 【Purpose】

The purpose of this Law shall be to ensure the maintenance of the business reputation of persons using trademarks by protecting trademarks so as to contribute to the development of industry and to protect the interests of consumers.

Article 2【Definitions】

(1) The definitions of terms used in this Law shall be as follows:

(i) "trademark" is defined as any of the following(hereinafter referred to as a "mark") which is used on goods related to the business of a person who carries on business activities, such as producing, processing, certifying or selling such goods, for the purpose of distinguishing them from the goods of others;

(a) A sign, a character, a figure, a three-dimensional shape or any combination thereof;

(b) Any combination of color with any of the items of subparagraph(a) of this paragraph.

(ii) "service mark" means a mark which is used by a person who carries on a service business for the purpose of distinguishing such business from those of others;

(iii) "collective mark" means a mark intended to be used with respect to the goods or services of members of a legal entity founded by and composed of persons who are in the same line of business and who are closely associated therein and who are controlled by the legal entity;

(iv) "business emblem" means a mark which is used by a person who carries on a nonprofit business for the purpose of indicating his business;

(v) "registered trademark " means a trademark for which a trademark registration has been granted;

(vi) "use of a trademark" means any of the following acts:

(a) applying trademarks on goods or their packaging;

(b) selling or delivering goods or their packaging on which trademarks have been applied or displaying, exporting or importing such goods or their packaging for the purposes of selling or delivering;

(c) indicating the trademark on advertisements, price lists, business papers, signboards or labels or displaying or distributing them.

(2) Acts of using a trademark on goods, packaging of goods, advertisements, signboards of labels under above paragraph (1)(vi)(a) to (c) of this Article shall include using goods, packaging of goods, advertisements, signboards or labels as shapes of marks.

(3) Except as otherwise expressly provided for in this Law, the provisions in this Law relating to trademarks shall apply to service marks, collective marks and business emblems.

Article 3 【Persons Entitled to Register a Trademark】

Any person who uses or intends to use his trademark in the Republic of Korea shall be entitled to trademark registration; however, employees of the Korean Intellectual Property Office or employees of the Intellectual Property Tribunal shall not be entitled to register trademarks during their employment at the Office except in the case of inheritance or bequest.

Article 4 【Persons Entitled to Register a Business Emblem】

Any person who carries on a nonprofit business in the Republic of Korea shall be entitled to register a business emblem.

Article 5 【Mutatis Mutandis Application of Provisions of the Patent Law】

Articles 3 to 26, 28 to 28quinquies of the Patent Law shall apply mutatis mutandis to trademarks. In such cases, "Article 132ter" in Articles 6, 11(1)(iv), 15(1) and 17 of the Patent Law shall read "Article 70bis or 70ter", "patent right and patent" in the proviso of Article 28(2) of the Patent Law shall read "trademark right and trademark" and "international application under Article 2(vii) of the Patent Cooperation Treaty (hereinafter referred to as 'international application')" shall read "international application under Article 2(2) of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (hereinafter referred to as 'international application'. Hereinafter, said Protocol Relating to the Madrid Agreement shall be referred to as 'the Protocol')".

CHAPTER II  REQUIREMENTS FOR TRADEMARK REGISTRATION AND APPLICATION THEREFOR

Article 6 【Requirements for Trademark Registration】

(1) A trademark registration may be obtained except in the following cases:

(i) where the mark consists solely of a sign indicating, in a common way, the usual name of the goods;

(ii) where the mark is customarily used on the goods;

(iii) where the mark consists solely of a sign indicating, in a common way, the origin, quality, raw materials, efficacy, use, quantity, shape (including shape of packaging) or price of the goods, or the method or time of manufacturing, processing or using them;

(iv) where the mark consists solely of a sign indicating a conspicuous geographical name, an abbreviation thereof or a map;

(v) where the mark consists solely of a sign indicating, in a common way, a common surname or name of a legal entity;

(vi) where the mark consists solely of a very simple and commonplace sign;

(vii) in addition to the cases mentioned in subparagraph (i) to (vi), where the mark does not enable consumers to recognize whose goods it indicates in connection with a person's business.

(2) Even in the case of a trademark which falls under paragraph (1)(iii) to (vi), where, as a result of the use of such trademark prior to the application for registration therefor under Article 9, consumers are able to conspicuously recognize whose goods it indicates in connection with a person's business, the trademark may be registered together with the designated goods (designated goods and supplementary designated goods as defined in Articles 10(1) and 47(2)(iii), the same provision being applicable hereinafter) for which the trademark has been used.

Article 7 【Unregistrable Trademarks】

(1) Notwithstanding Article 6, trademark registration may not be obtained in the following cases;

(i) trademarks which are identical with, or similar to, the national flag, the national emblem, colors, medals, decorations or badges of the Republic of Korea; the national flags or emblems of foreign nations; medals, decorations or badges of the countries party to the Paris Convention for the Protection of Intellectual Property (hereinafter referred as to "Paris Convention"); medals of a member of the World Trade Organization or a contracting party to the Trademark Law Treaty; the titles or marks of the Red Cross; Olympic or well-known international organizations; or those which are identical with, or similar to, seals or signs of the Republic of Korea or the countries party to the Paris Convention, a member of the World Trade Organization or a contracting party to the Trademark Law Treaty; or the public organizations thereof, used for indicating supervision or certification;

(ii) trademarks which falsely indicate a connection with any nation, race, ethnic group, public organization, religion or famous deceased person, or which criticize, insult or are liable to defame them;

(iii) trademarks which are identical with, or similar to: famous marks indicating a nonprofit business of a State; a public organization or agencies or public corporations thereof; or indicating nonprofit public services. However, this provision shall not apply where the State, public organization or agency or public corporation thereof, or the body of nonprofit public services, applies for the registration of such marks as their business emblems;

(iv) trademarks which are contrary to public order or morality;

(v) trademarks comprising of a mark which is identical, or similar to, a medal, certificate of merit or decoration awarded at an exhibition held by or with the authorization of the Government of the Republic of Korea or at an exhibition held by or with the authorization of the government of a foreign country; however, this provision shall not apply where a person who has been awarded a medal, certificate of merit or decoration has used it as a part of his trademark on the same goods for which such medal, certificate of merit or decoration was awarded at the exhibition;

(vi) trademarks containing the name, title or trade name, portrait, signature or seal, famous pseudonym, professional name or pen name of well-known persons, or an abbreviation thereof; however, this provision shall not apply where the consent of the person concerned has been obtained;

(vii) trademarks identical, or similar to another person's registered trademark whose registration was applied for prior to the filing date of the trademark applications concerned and which are to be used on goods identical, or similar to the designated goods;

(viii) trademarks identical, or similar to another person's trademark, where one year has not elapsed since the date of extinguishment of the trademark right(in the case of a trial decision invalidating a trademark registration, the date when the trial decision became final and conclusive, the same applying hereinafter in this subparagraph) and which are used on the designated goods covered by the trademark right or on similar goods;

(ix) trademarks which are identical, or similar to, another person's trademark which is well known among consumers as indicating the goods of that other person, or goods similar thereto, and which are used on goods that are identical, or similar to such goods;

(x) trademarks which are liable to cause confusion with goods or services of another person because the trademark is recognized among consumers as designating the goods or services of that other person;

(xi) trademarks which are liable to mislead or deceive the consumers as to the quality of the goods.

(xii) trademarks which are identical, or similar to a trademark which is recognized as indicating the goods of a particular person by customers in or outside of the Republic of Korea, and which are used for unjust purposes of obtaining unjust profits or inflicting harms on a particular person, etc.

(xiii) trademarks consisting solely of three-dimensional shapes essential to secure the functions of goods requiring trademark registration or their packagings.

(xiv) trademarks consisting of geographical indications or including such indications with regard to the origin of wines or spirits in a member of the World Trade Organization, and which are used in connection with wines, spirits, or other similar goods.

(2) Even if a trademark falls under paragraphs (1)(vi), (ix) and (x) of this Article, the respective provisions shall not apply in the event the trademark does not fall under the respective subparagraphs at the time of application for the registration of a trademark.

(3) In the case of a trademark falling under paragraph (1)(vii) and (viii) of this Article, the respective provisions shall apply where the trademark falls under the respective subparagraphs at the time of application for registration of the trademark (this shall also apply when the registered trademark of another person is invalidated under Article 71 (3)), except where the owner of the trademark and the applicant for registration of the trademark (hereinafter referred to as the "applicant") are one and the same person after the filing of the application.

(4) The provision of paragraph (1)(viii) of this Article shall not be applicable to the following cases:

(i) where the registered trademark has not been used for more than one year retroactively from the date the trademark right became null and void;

(ii) where a rightful applicant makes an application for registration of the trademark, after a decision on invalidation or revocation becomes conclusive by reason that the registered trademark violates the provisions of paragraph (1)(vi), (ix), (x) and (xii) or Articles 8 or 73(1)(vii); or

(iii) where the period of six months as prescribed in the provisions of Article 43(2) expires and no application for registration for renewal of term of a trademark right has been made.

(5) Where a trial for the cancellation of a trademark registration is requested under Article 73 (1) (ii),(iii),(v) to (ix) and where any of the following subparagraphs occurs after the date for the trial for cancellation, a person having the trademark right and any person using the trademark shall not obtain a trademark registration for the trademark that is identical, or similar to the registered trademark that has been extinguished with respect to goods that are identical, or similar to the designated goods of the registered trademark that has been extinguished unless three years have elapsed since the day on which each of the following subparagraphs occurs:

(i) where the trademark right has expired because of termination of the duration period ;

(ii) where a person having the trademark right abandons some of the trademark rights or designated goods ; or

(iii) where the trial decision on the cancellation of the registration of a trademark has become final and conclusive.

Article 8 【First-to-File Rule】

(1) Where two or more applications for trademark registration relating to identical or similar trademarks which are to be used on identical or similar goods are filed on different dates, only the applicant filing the application with the earlier filing date may obtain a trademark registration for the trademark.

(2) Where two or more applications for trademark registration relating to identical or similar trademarks which are to be used on identical or similar goods are filed on the same date, a consultation will be held among all the applicants and the one person agreed upon by all the applicants may obtain a trademark registration for the trademark. If no agreement is reached or no consultation is possible, the trademark registration may be obtained only by the applicant chosen by a lottery which shall be conducted by the Commissioner of the Korean Intellectual Property Office.

(3) Where an application for trademark registration has been abandoned, withdrawn or invalidated, or where an examiner's decision or trial decision to refuse trademark registration has become final and conclusive, such application shall, for the purposes of paragraphs (1) and (2) of this Article, be deemed never to have been filed.

(4) The Commissioner of the Korean Intellectual Property Office shall, in the case provided for under paragraph (2) of this Article, order the applicants to notify him of any agreement they have reached, and to report the terms thereof. If such a report is not submitted within the designated period, the applicants shall be deemed not to have reached an agreement within the meaning of paragraph (2) of this Article.

(5) Where a trial for the cancellation of a registered trademark is requested under Article 73 (1)(iii) and where each of the following subparagraphs occurs after the day on which the trial for cancellation is requested, only the person that the trial for cancellation may obtain a trademark registration for the trademark that is identical, or similar to the registered trademark that has been extinguished with respect to the goods that are identical, or similar to the designated goods of the registered trademark that has been extinguished for a period of three months as of the day on which each of the following subparagraphs occurs:

(i) when the period under the provisions of Article 43 (2) expires ;

(ii) when a person having the trademark right abandons some of the trademark right or designated goods ; or

(iii) when the trial decision on the cancellation of the registration of a trademark has become final and conclusive.

Article 9 【Application for Trademark Registration】

(1) Any person desiring to obtain a trademark registration shall file an application with the Commissioner of the Korean Intellectual Property Office stating the following:

(i) the name and domicile of the applicant for trademark registration (if the applicant is a legal entity, the title and place of business);

(ii) the name and domicile, or place of business, of the agent, if any (if the agent is a patent corporation, the name and the place of office and the name of the appointed patent attorney);

(iii) the trademark;

(iv) the list of designated goods and the class of goods;

(v) matters prescribed under Article 20(3)(only when claiming a priority right);

(vi) Deleted; and

(vii) matters prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.

(2) Any person wishing to have a mark which is made up of three-dimensional shapes (including symbols, characters, designs, colors or any combination thereof) (hereinafter referred to as "three-dimensional trademarks") registered shall indicate the meaning of such mark on the application of registration.

(3) Any person desiring to obtain the registration of a collective mark shall file, in addition to the matters mentioned in the subparagraphs of paragraph (1) of this Article, an application for registration of the collective mark accompanied by the articles of association which govern the use of such collective mark, as prescribed by Presidential Decree.

(4) Any person desiring to obtain the registration of a business emblem shall file, in addition to the matters mentioned in the subparagraphs of paragraph (1) of this Article, an application for registration of the business emblem accompanied by documents proving the existence of a business management.

Article 9bis 【Recognition, etc. of Filing Date of Application】

(1) The Commissioner of the Korean Intellectual Property Office shall recognize the date on which an application for trademark registration is received by the Korean Intellectual Property Office as the filing date of the application for trademark registration except in the following cases:

(i) where the reason for seeking to obtain a trademark registration is not clearly stated;

(ii) where the name or the title of the applicant is not indicated, or where the indication of the applicant is not clearly specified;

(iii) where the trademark for which registration is being sought is not indicated in the application or where the indication is not clearly discernable;

(iv) where the designated goods are not indicated; or

(v) where the application is not filed in the Korean language.

(2) Where an application for trademark registration falls under any of the subparagraphs of paragraph (1), the Commissioner of the Korean Intellectual Property Office shall designate a time limit within which the person desiring to obtain a trademark registration will be ordered to supplement the application.

(3) Where the person supplements the application for trademark registration pursuant to the order to supplement under paragraph (2), he/she shall submit documents for the procedure to supplement the application (hereinafter referred to as the "supplement procedure").

(4) Where the person who has received an order to supplement under paragraph (2) has done so within the designated time limit, the Commissioner of the Korean Intellectual Property Office shall recognize the date on which the supplement procedure was received by the Korean Intellectual Property Office as the filing date of the application for trademark registration.

(5) Where the person who has received an order to supplement under paragraph (2) has not done so within the designated time limit, the Commissioner of the Korean Intellectual Property Office may return the application for trademark registration on the ground that the application is defective.

Article 10 【One Application for One Trademark】

(1) Any person who intends to file an application for trademark registration, shall designate one category or more of goods with respect to the classification of goods as prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy, and make an application for each trademark. In such cases, he/she may designate both goods and services in one application.

(2) The classes of goods referred to under paragraph(1) of this Article shall not be construed to limit the extent of similarity of the goods.

Article 11 Deleted

Article 12 【Transfer and Partial Assignment of Application for Registration of a Trademark, etc.】

(1) Transfer of an application for trademark registration, except in cases of inheritance or other general succession, shall not be effective against third parties without recordation of the change of applicant.

(2) An application for trademark registration may be transferred separately for each of the goods designated in the application. In this case, designated goods that are similar shall be transferred together.

(3) Deleted

(4) In the case of inheritance or other general succession, the successor in title shall, without delay, notify the Commissioner of the Korean Intellectual Property Office.

(5) Where an application for trademark registration is owned jointly, a joint owner may transfer his shares only with the consent of all the other joint owners.

(6) An application for trademark registration which is partially assigned pursuant to paragraph (2) of this Article shall be deemed to have been filed at the time of filing of the original application, except, however, where Article 20(3) and (4) or 21(2) is applicable.

(7) An application for the registration of a business emblem may not be transferred unless the entire business is transferred.

(8) An application for trademark registration pursuant to the provisions of Article 7(1)(iii) may be transferred only together with the business related to the mark referred to in the principal sentence of that Article.

(9) An application for the registration of a collective mark may not be transferred. However, it may be transferred, with the authorization of the Commissioner of the Korean Intellectual Property Office, in the case of mergers of legal entities.

Article 13 【Amendment of Procedure】

The Commissioner of the Korean Intellectual Property Office or the President of the Intellectual Property Tribunal may order the amendment of an application, a request, or any other procedure within an adequate time limit in any of the following cases:

(i) When the requirements of Article 3(1) of the Trademark Law or Article 6 of the Patent Law, as applied under Article 5 of the Trademark Law, have not been complied with;

(ii) When the formal requirements specified in the Trademark Law or an

Ordinance thereunder have not been complied with; or

(iii) When the fees required in accordance with Article 37 have not been paid.

Article 14 【Amendment Before Decision of Publication of Application】

(1) Excluding the cases specified in Article 15, an applicant may amend the trademark or the list of designated goods in the application for trademark registration provided that the intent and purpose of the original application is not changed.

(2) An amendment under paragraph (1) of this Article may not be made after the transmittal of a certified copy of the examiner's decision to grant or refuse a trademark registration (hereinafter referred as to "decision to grant or refuse a trademark registration"). However, where a trial against a decision of refusal is requested under Article 70bis, an amendment may be made within thirty days from the request, or within the period in which the written opinion is to be submitted under Article 23(2), 45(2), 46quater(2) or 48(2), which is applicable under Article 81.

Article 15 【Amendment after Decision of Publication of Application】

1. The applicant may, within the time limit set forth under any of the following conditions, amend or correct the designated goods and/or the specimen in response to reasons for refusal, reasons for opposition, reasons for a decision to refuse a trademark registration, or a decision to refuse supplementary registration of the designated goods as long as the subject matter is not materially changed when a notice of rejection is served under Article 23(2) or Article 48(2) after the certified copy of the decision on publication of the application under Article 24 is delivered, when an opposition to the trademark registration is brought under Article 25, or when an appeal against a decision of refusal under Article 70(2) is requested against a decision to refuse a trademark registration under Article 23(1) or a decision to refuse a supplementary registration of designated goods under Article 48(1);

(i) Time limit designated for submitting arguments under Article 23(2) or 48(2);

(ii) Time limit designated for submitting a written answer under Article 27(1); or

(iii) Thirty days from the date of the request for a trial against decision of refusal under Article 70bis.

Article 16 【Material Change of Application】

(1) An amendment made under Article 14 or 15, falling under any of the following provisions, shall be deemed not to cause a material change to the application for the registration of a trademark:

(i) Reduction in the scope of the list of designated goods;

(ii) Correction of errors;

(iii) Classification of ambiguous descriptions;

(iv) Deletion of any auxiliary part of the trademark.

(2) If an amendment of an application for trademark registration or designated goods has been made before the transmittal of a certified copy of decision to publish on application and is recognized to have caused a material change after the establishment of a trademark right, the trademark application shall be deemed to have been filed at the time the written amendment thereof is submitted.

(3) If an amendment of an application for trademark registration or designated goods has been made after the transmittal of a certified copy of decision to publish an application and is deemed to have violated Article 15 after the establishment of a trademark right, the trademark application shall be deemed to have been established and registered on the trademark application which has not been amended.

Article 17 【Rejection of Amendment】

(1) Where an amendment made under Article 14 causes a material change to an application, the examiner shall reject the amendment to the application for registration of a trademark in the form of a decision.

(2) The examiner shall not make a decision to grant or refuse trademark registration with respect to a trademark application, where a decision to reject an amendment has been rendered under paragraph (1) of this Article, until the expiration of thirty days from the date the certified copy of said decision has been transmitted. Where a decision to reject an amendment has been made under paragraph (1) of this Article, the examiner shall also not make a decision to publish the application subject to such amendment.

(3) Where an applicant requests a trial in accordance with Article 70ter against a decision to reject an amendment under paragraph(1) of this Article, the examiner shall suspend the examination of the application for trademark registration until the trial decision has become final and conclusive.

(4) Where an amendment under Article 15 regarding an application for the registration of a trademark materially changes the application, the examiner shall reject the amendment in the form of decision.

(5) The decision to reject an amendment under paragraph (1) or (4) of this Article shall be made in writing and shall state the reasons therefor.

(6) No appeal shall be allowed for a decision to reject an amendment under paragraph (4), except in the case where a trial against a decision of refusal is requested under Article 70bis.

Article 18 【Division of Application for Trademark Registration】

(1) Where an applicant files an application for the registration of a trademark indicating two or more goods as designated goods, the application for the registration of a trademark may be divided into two or more applications within the period during which amendments may be made under Articles 14 and 15.

(2) An application that has been divided under paragraph (1) of this Article (hereinafter referred to as a "divided application") shall be deemed to have been filed at the time of filing of the original application, except when Articles 20(3), (4) or 21(2) are applicable.

Article 19 【Conversion of Application】

(1) An applicant may convert an application for the registration of a trademark into an application for the registration of a service mark and vice versa.

(2) If an application for trademark registration is converted under paragraph (1) of this Article (hereinafter referred to as a "converted application"), the converted application shall be considered as an application for trademark registration or a service mark registration and shall be deemed to have been filed at the time of the initial application.

(3) The converted application as referred to in paragraph (2) of this Article may not be made after a decision to grant or refuse a trademark registration or a trial decision on the initial application for trademark registration, or after a decision to grant or refuse a service mark registration or a trial decision on the initial application for service mark registration has become final and conclusive.

(4) If a converted application as referred to in paragraph (2) of this Article is filed, the initial application for trademark registration or service trademark registration shall be considered to have been withdrawn.

(5) No conversion may be made for applications for the registration of trademarks, collective marks or business marks.

Article 20 【Priority Claim under Treaty】

(1) If a national of a country who is required to recognize a right of priority for an application for trademark registration filed by a national of the Republic of Korea under a treaty or similar instrument (hereinafter referred to as a "treaty") claims a right of priority for the application for trademark registration in the Republic of Korea on the basis of the prior application for such trademark registration filed in his country or in one of the countries recognized in the treaty, the filing date of the prior application in the foreign country shall be deemed to be the filing date in the Republic of Korea for the purposes of Article 8. Where a national of the Republic of Korea has filed an application for trademark registration in a country which recognizes, under a treaty, the right of priority for applications for trademark registration filed by nationals of the Republic of Korea, and claims the right of priority for an application for trademark registration in the Republic of Korea on the basis of the prior application for such trademark registration filed in the said country, this provision shall also apply.

(2) A person intending to claim the right of priority in accordance with paragraph (1) of this Article shall file the application within six months from the filing date of the prior application which is the basis of such right of priority.

(3) A person intending to claim the right of priority in accordance with paragraph (1) of this Article shall specify the nature, name of the country, trademark and the filing date of the prior application on the application for trademark registration at the time of filing the application.

(4) A person claiming the right of priority in accordance with paragraph (3) of this Article shall submit to the Commissioner of the Korean Intellectual Property Office, within three months from the filing date of the application for trademark registration, a written statement setting forth the filing date of the application, the trademark and the list of designated goods, certified by the government of the country where the prior application was filed.

(5) Where a person claiming the right of priority in accordance with paragraph (3) of this Article fails to submit the certified copy within the time limit prescribed under paragraph (4) of this Article, the claim to the right of priority shall be forfeited.

Article 21 【Special Provisions as to Time of Filing an Application】

(1) Where a person entitled to file an application for trademark registration files, an application for trademark registration whose designated goods bearing the trademark have been exhibited at any one of the following types of exhibitions within six months from the date of such exhibition, the application shall be deemed to have been filed at the time when such goods were exhibited.

(i) exhibitions held by the Government or a local government;

(ii) exhibitions held by persons authorized by the Government or a local government;

(iii) exhibitions held in a foreign country with the authorization of the Government;

(iv) international exhibitions held in the territory of a country party to a treaty by the government of the said country or by persons authorized by the said government.

(2) Any person desiring to take advantage of paragraph (1) of this Article with respect to a trademark in an application for trademark registration shall submit a written statement to that effect in conjunction with his application for trademark registration to the Commissioner of the Korean Intellectual Property Office, to whom such person shall also submit, within thirty days from the filing date of the application, a document proving the relevant facts.

CHAPTER III  EXAMINATION

Article 22 【Examination by Examiner】

(1) The Commissioner of the Korean Intellectual Property Office shall have applications for the trademarks registration and oppositions to trademarks registration examined by examiners.

(2) The qualifications for examiners shall be prescribed by the Presidential Decree.

(3) Any person whose application for trademark registration falls within any subparagraph of Article 23(1) may submit to the Commissioner of the Korean Intellectual Property Office relevant information together with supporting evidence.

Article 22bis 【Request, etc. for Inspection of Trademark by Specialized Searching Agency】

(1) The Commissioner of the Korean Intellectual Property Office may request a specialized searching agency to inspect trademarks where it is deemed necessary for the examination for an application of trademark registration.

(2) The Commissioner of the Korean Intellectual Property Office may request assistance or hear from the competent administrative agency, a person with vast knowledge and experience in trademarks, or interested persons, where it is deemed necessary for the examination of an application for trademark registration.

(3) Criteria for the specialized searching agency and requests for the search of trademarks pursuant to paragraph (1) of this Article shall be prescribed by the Presidential Decree.

Article 23 【Decision to Refuse Trademark Registration and Notification of Reasons for Refusal】

(1) The examiner shall make a decision to refuse trademark registration with respect to an application for trademark registration where it falls under any of the following subparagraphs:

(i) where the trademark is not registrable in accordance with the provisions of Article 3, 6 to 8, 10(1), 12(2) (second sentence), (5) and (7) to (9) of Trademark Law or 25 of the Patent Law as applied under Article 5 of the Trademark Law;

(ii) where the trademark is in violation of the provisions of a treaty;

(iii) where the trademark is identical, or similar to a trademark registered in the territory of a country which is a party to a treaty and has been filed by a person who is or was an agent or a representative of the owner of the trademark, within one year prior to the date of filing, without such owner's authorization, for designated goods which are identical, or similar to the designated goods covered by the owner's trade-mark; however, this provision shall apply only where an opposition has been filed or information has been furnished under Article 22(3) by the owner; or

(iv) where the trademark is not in agreement with the definition of the mark under Article 2(1)(i) to (iv).

(2) An examiner shall, when intending to make a decision to refuse trademark registration under paragraph (1) of this Article, notify the applicant of the reasons for refusal and give the applicant an opportunity to submit a written statement of applicant's arguments, designating a time limit for such submission.

Article 24 【Publication of Application】

(1) Where an examiner finds no grounds for rejecting an application for trademark registration, he shall render a decision to publish the application.

(2) Where a decision under paragraph (1) of this Article is made, the Commissioner of the Korean Intellectual Property Office shall transmit the decision to the applicant and publish the application in the Trademark Gazette.

(3) The Commissioner of the Korean Intellectual Property Office shall make the documents of the application for trademark registration and other related documents available for public inspection at the Korean Intellectual Property Office for a period of thirty days following the date of publication of the application.

Article 24bis 【Right to Demand Compensation for Loss】

(1) After an application is published under Article 24(2) (including mutatis mutandis application under Article 49(3) and Article 81(1)), an applicant may warn, in writing, a person who has used a trademark that is identical or similar to the trademark of said published application on goods that are identical or similar to the designated goods of said published application. However, where the applicant can show a copy of said application for trademark registration, he/she may send a warning in writing even before the publication of the application.

(2) An applicant who has sent a warning under paragraph (1) may demand payment of compensation in an amount equivalent to the loss of business caused by the use of said trademark from the date of warning to the date of registration of the trademark right.

(3) The right to demand under paragraph (2) shall be exercised only after the registration of a trademark right.

(4) The exercise of the right to demand under paragraph (2) shall not preclude the exercise of the trademark right.

(5) Articles 52, 66, 69 and 70, and Articles 760 and 766 of the Civil Code shall apply mutatis mutandis to the execution of the right to demand under paragraph (2). In such cases, "the date on which the damaged party or his legal representative became aware of such damage and the identity of the person causing it" in Article 766(1) of the Civil Code shall read "the date of registration of said trademark right".

(6) Where the application for trademark registration falls under any of the following subparagraphs, the right to demand under paragraph (2) shall be deemed never to have existed.

(i) where an application for trademark registration has been abandoned, withdrawn or invalidated;

(ii) where a decision to refuse trademark registration for an application for trademark registration has become final and conclusive; or

(iii) where a trial decision to invalidate a trademark registration under Article 71 (except Article 71(1)(iv) and (v) apply) has become final and conclusive.

Article 25 【Opposition to Trademark Registration】

(1) When an application is published, any person may raise an opposition to a trademark registration which falls within each subparagraph of Article 23(1) with the Commissioner of the Korean Intellectual Property Office within thirty days from the date of publication of the application.

(2) If any person intends to make an opposition to a trademark registration, such person shall submit to the Commissioner of the Korean Intellectual Property Office a written opposition specifying matters falling under each of the following subparagraphs, together with the supporting evidence:

(i) the name and the domicile of the applicant of the opposition to a trademark registration (if the applicant is a legal entity, the title and place of business)

(ibis) where such person has a legal agent, the name and the domicile or the place of business (if the agent is a patent corporation, the title, place of business, and the name of the appointed patent attorney);

(ii) serial number of the application for the trademark registration ;

(iii) relevant category of goods and designated goods ;

(iv) grounds of the application for the opposition to a trademark registration ; and

(v) reasons for the application for the opposition to a trademark registration and indication of supporting evidences.

Article 26 【Amendment of Reasons for Opposition to Trademark Registration】

A person who has filed a notice of opposition to a trademark registration under Article 25(1) (hereinafter referred to as the "opponent") may amend the reasons and evidence submitted in the notice of opposition to the trademark registration within thirty days from the expiration of the time limit for filing the notice of opposition.

Article 27 【Decision on Opposition to Trademark Registration 】

(1) Where a notice of opposition has been filed, the examiner shall transmit to the applicant a copy of the notice of opposition to the trademark registration and give the applicant an opportunity to submit an answer in writing within the designated time limit.

(2) After the expiration of the time limits prescribed in paragraph (1) of this Article and Article 26, the examiner shall render a decision on the opposition to the trademark registration.

(3) Where an opponent fails to submit reasons and evidence, the examiner may reject the opposition to the trademark registration by decision after the expiration of the time limit under Article 26, notwithstanding paragraph (1) of this Article.

(4) The decision on the opposition to a trademark registration shall be made in writing and state the reasons therefor.

(5) The Commissioner of the Korean Intellectual Property Office shall, when a decision has been rendered under paragraph (2) of this Article, transmit a certified copy of the decision to the applicant and the Opponent.

(6) No appeal shall be made against the decision on the opposition to a trademark registration.

(7) In applying paragraph (4) of this Article, where there are different reasons for the decision on the opposition to a trademark registration for two or more designated goods, the examiner shall give specific reasons for the decision for each of the respective goods.

Article 28 【Decision of Refusal to Register a Trademark Made Ex Officio After Publication】

(1) Where an examiner finds reasons for refusal after the publication of an application, he may render a decision of refusal ex officio under Article 23.

(2) Where an examiner render a decision to refuse an application under paragraph (1) of this Article, he shall not render a decision on the opposition to the registration of a trademark even if the opposition has been filed in accordance with Article 25.

(3) Where a decision of refusal has been rendered under paragraph (1) of this Article, the Commissioner of the Korean Intellectual Property Office shall transmit a certified copy of the decision of refusal to the opponent.

Article 29 【Concurrent Oppositions to Trademark Registration】

(1) Where two or more oppositions have been filed, an examiner may examine and rule upon them jointly or separately.

(2) Where two or more oppositions have been filed and one of them is deemed to be justified upon examination, the examiner need not render a ruling as to the other opposition(s).

(3) The Commissioner of the Korean Intellectual Property Office shall also transmit a certified copy of the decision of rejection to the opponents whose oppositions were not examined under paragraph(2) of this Article.

Article 30 【Decision to Grant Registration of a Trademark】

Where the examiner cannot find any reasons for refusing an application for the registration of a trademark, the examiner shall render a decision in favor of trademark registration.

Article 31 【Method of Decision on Registration of Trademark 】

(1) The decision on the registration of a trademark shall be made in writing and shall state the reasons therefor.

(2) Where an examiner has made a decision concerning registration of a trademark, the Commissioner of the Korean Intellectual Property Office shall transmit a certified copy of the decision to the applicant.

Article 32 【Suspension of Examination or Litigation Proceedings】

(1) The examination procedure of an application for the registration of a trademark may, if necessary, be suspended until a trial decision has become final and conclusive or litigation proceedings have been concluded.

(2) The court may, if necessary in the litigation, suspend proceedings until the examiner's decision on the registration of a trademark has become final and conclusive.

Article 33 【Mutatis Mutandis Application of Provisions of the Patent Law】

Articles 148(1) - (5), (7) and 157 of the Patent Law and Articles 133, 271 and 339 of the Code of Civil Procedure shall apply mutatis mutandis to the examination of applications for the registration of trademarks.

CHAPTER IV TRADEMARK REGISTRATION FEES AND REGISTRATION OF TRADEMARKS

Article 34 【Trademark Registration Fees】

(1) A person desiring to obtain registration of a trademark right, supplementary registration of designated goods or registration for the renewal of term of a trademark right shall pay the trademark registration fees.

(2) Regardless of whether the person liable to pay the trademark registration fees is willing, any interested person may pay the trademark registration fees under paragraph (1) of this Article.

(3) Matters related to the payment of trademark registration fees under paragraph (1) of this Article, including the procedure and time limits for payment, shall be prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.

Article 34bis 【Abandonment of a Some or All the Designated Goods at the Time of Payment of the Trademark Registration Fees】

(1) A person who has obtained a decision granting registration of a trademark application that includes more than two designated goods, has obtained a decision granting supplementary registration of designated goods in an application for supplementary registration of the designated goods, or has obtained a decision granting registration for renewal of term of a trademark right may abandon said designated goods in part or in whole when he/she pays the trademark registration fees.

(2) Matters related to the abandonment of designated goods under paragraph (1) of this Article shall be prescribed by Ordinance of the Ministry of Commerce, Industry and Energy.

Article 35 【Extension Payment Period for Trademark Registration Fees】

The Commissioner of the Korean Intellectual Property Office may, upon request, extend the period for the payment of trademark registration fees under Article 34(3) for a period not exceeding thirty days.

Article 36 【Abandonment of Application for Registration of Trademark as a Consequence of Nonpayment of Trademark Registration Fees】

If the trademark registration fees are not paid within the periods provided for in Articles 34(3) or 35, the applications for registration of a trademark, supplementary registration of designated goods or registration for the renewal of term of a trademark shall be deemed to have been abandoned.

Article 36bis【Revival of an Application for Trademark Registration by Payment of the Trademark Registration Fees, etc.】

(1) Where an applicant who has submitted an application for registration of a trademark, an application for supplementary registration of designated goods, or an application for registration for a renewal of term of a trademark right deemed to have been abandoned under Article 36, or where an applicant was unable to pay the registration fees under Article 34(3) within the payment period prescribed under Article 34(3) or 35 due to circumstances beyond his or her control, said applicant may pay the registration fees within 14 days from the date on which said circumstances cease to exist. However, this provision shall not apply where a period of 6 months elapses from the expiration date of the payment period prescribed under Article 34(3) or 35.

(2) Where payment of the registration fees is made in accordance with paragraph (1), the application for registration of a trademark, the application for supplementary registration of designated goods, or the application for registration for the renewal of term of a trademark shall be deemed to have not been abandoned, notwithstanding the provisions of Article 36.

(3) Where an application for registration of a trademark, an application for supplementary registration of designated goods, or a trademark right has been revived under paragraph (2), the effect of said revival of the application for registration of a trademark, the application for supplementary registration of designated goods, or the trademark right shall not extend to use of a trademark that is identical or similar to a registered trademark on goods identical or similar to the designated goods if said use occurred within a period extending from the expiration date of the payment period under Article 34(3) or 35 to the revival date of the application for trademark registration, the application for supplementary registration of designated goods, or the trademark right.

Article 37 【Official Fees】

(1) A person filing an application, making a demand or initiating other procedures with regard to a trademark shall pay official fees. However, in the event a request is made for an invalidation trial by an examiner in accordance with Article 71(1) or 72(1), such fees shall not be applicable.

(2) Matters related to the payment of official fees under paragraph(i) of this Article, including the procedure and time limits for payment of the fees, shall be prescribed by Ordinance of the Ministry of Commerce, Industry and Energy.

(3) A person who makes an application for renewal of term registration of a trademark right within the period of time as prescribed in Article 43(2) shall pay the amount as determined by Ordinance of the Ministry of Commerce, Industry and Energy in addition to the fee referred to in paragraph (2) of this Article.

Article 38 【Refund of Trademark Registration Fees】

(1) Trademark registration fees and official fees which have been paid shall not be refunded. However, where an error has been made in the payment of fees, the incorrectly paid portion of the fees shall be refunded without delay upon request by the person who made said payment error.

(2) Where an error has been made in the payment of fees, the Commissioner of the Korean Intellectual Property Office shall issue notification of the fact to the person who made said payment error.

(3) A refund of the trademark registration fees and official fees submitted under paragraph (2) shall not be requested where one year has elapsed from the date on which notification was given of said payment error.

Article 39 【Trademark Register】

(1) The Commissioner of the Korean Intellectual Property Office shall keep a Trademark Register at the Korean Intellectual Property Office and shall register the following matters:

(i) the establishment, transfer, modification, expiration, renewal of the term, conversion of the classification of goods under Article 46bis, supplementary registration of designated goods or restriction on disposal, of a trademark right;

(ii) the establishment, maintenance, transfer, modification, expiration, or restriction on disposal of an exclusive or non-exclusive license; and

(iii) the establishment, transfer, modification, expiration, and restriction on disposal of a pledge on a trademark right in relation to an exclusive or non-exclusive license.

(2) All or part of the Trademark Register may be stored in electronic format such as magnetic tape.

(3) Necessary matters relating to registration and registration procedures of trademarks not provided for in paragraphs (1) and (2) of this Article shall be prescribed by the Presidential Decree.

Article 40 【Issuance of Certificate of Registration of Trademark】

(1) When the establishment of a trademark right has been registered, the commissioner of the Korean Intellectual Property Office shall issue a certificate of registration of the trademark to the owner of the trademark.

(2) Where the certificate of registration of a trademark does not correspond with the Trademark Register, the Commissioner of the Korean Intellectual Property Office shall make a correction on the certificate and reissue the certificate with amendments or issue a new certificate upon request by the applicant or ex officio.

CHAPTER V  TRADEMARK RIGHT

Article 41 【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 Intellectual Property Office shall authorize the registration of the trademark right. When the trademark registration fees have been paid in accordance with Article 34(1).

Article 42 【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 【Application for Registration for the Renewal of Term】

(1) Any person desiring registration for the renewal of term of a trademark right under Article 42(2) shall submit an application to the Commissioner of the Korean Intellectual Property Office, including the following:

(i) requirements under Article 9(1) (i), (ii), (iv) and (vii); and

(ii) 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 【Division of an Application for Registration for Renewal of Term of a 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 【Decision of Refusal of Registration for Renewal of Term and Notification of Reasons for Refusal】

(1) The examiner shall make a decision of refusal of registration for renewal of term of a trademark right where it falls under any one of the following subparagraphs:

(i) deleted

(ii) the applicant is not the owner of the trademark right concerned;

(iii) the application is in violation of Article 43(2);

(iv) deleted

(v) deleted

(vi) 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 application expand the classification of the designated goods essentially.

(2) Where the examiner intends to render a decision of refusal of registration for renewal of term of a trademark right 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 【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 decision of refusal of registration for the renewal of term of a trademark right 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 46bis【Application to Register the Conversion of the Classification