7/02/2015

Intellectual Property Protection Strategies in Korea: Trademark Law Korea

The ABA Section of Intellectual Property Law Landslide Magazine (May/June 2015) has an excellent article entitled: Trademark Tips: Seven Experts Share Their Secrets.

Ashly Boeshe wrote a great comment that is essential for protecting your IP in Asia.  Ashly notes, in part, that:
"Trademark owners should take a global perspective when protecting their brands.  Whether advertising their products or services online or manufacturing products in a foreign country, trademark owners should not only consider seeking trademark protection in their key markets, but also in countries where infringement runs rampant and relief may be difficult to come by.
Unlike the United States where trademark rights are obtained through use, several other major economic markets are civil code or "first to file" countries.  In these jurisdictions, trademark rights do not commence with use, but rather are granted to the first person or entity to file a trademark application or obtain a trademark registration."
Korea falls into this category.  Korea is a "first to file" nation.  In most cases, the first to file shall win over a subsequent filer unless, inter alia, the mark is "well-known" in Korea, has not been used for a period of time or you had no business relationship with the holder of the mark. 

We wrote many articles on this issue.  Please checkout the IP link to the right for more articles on this issue. 
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

Sean's profile may be found at: Sean C. Hayes

7/01/2015

Don't Bet Against Samsung in Korea: Elliott Lost Injunction Case at Korean Court

We have been consulted by a number of hedge funds requesting information concerning the proposed merger between Cheil & Samsung C & T.  We advised, notwithstanding the "law,"  that Samsung will, likely, win the battle against Elliot. 

Today, Elliott's injunctions against the Board vote on the merger was dismissed by the Seoul Central District Court.  No surprise here. The Court noted that the merger ratio is not "patently unfair."

We will have more on this issue when more is known.  
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

Sean profile's may be found at: Sean C. Hayes

6/29/2015

Must I grant Male Employees Maternity Leave in Korea?: Korean Labor/Employment Law Update

Article 19 of the Korean Labor Standards Act (LSA), in part, governs whether an employer must grant an employee unpaid maternity leave.  Any employer, under the LSA, must grant a male or female employee maternity leave (Literal translation: Temporary Retirement for Childcare) if the child of the parent is taking care of the child and the child is under the age of 8 (Western/Legal Age).

The employer is required to give the employee a maximum of one year unpaid leave, the employer may not dismiss the employee or otherwise disadvantage the employee during this leave period and the employer must include this period in the employee's "continuous employment" and must pay the employee, at least, the same wage amount as when the employee commences the leave as when the employee returns to work.

More articles on employment law that may be of interest to the reader.
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

Sean's profile may be found at: Sean C. Hayes

6/22/2015

Bail Granted in Korea for Alleged Violations of Korean Banking Laws

We are proud to announce that we, recently, prevailed in a white-collar criminal matter concerning an alleged crime involving violations of Korea's Banking Laws.  The allegations stemmed from transactions between a payment processor and a major Korean financial institution. 

Bail was granted for the non-Korean banker/businessman and, promptly, upon the granting of the bail by the Korean court, the Seoul Prosecution decided to drop all charges against our client.  In Korea, it is very difficult to obtain bail in cases that are being vigorously pursued by the Prosecution.  The conviction rate, in Korea, is greater than 99%.


We are proud to note that our criminal defense team has been successful in obtaining bail and not guilty verdicts for the majority of our foreign clients.  Our success is based on the dedication, passion and proactive nature of a very experienced retired judge, prosecutor and one of Korea's best known expat attorneys.



Article 95 of the Criminal Procedure Act notes that:
"When a motion for release on bail has been filed, it shall be allowed except in the following cases: 
1. When the defendant commits an offense punishable with the death penalty, imprisonment for life or imprisonment or imprisonment without prison labor exceeding ten years;

2. When the defendant is recidivist offender or commits habitual crimes;

3. When there is reasonable ground to suspect that the defendant has destroyed or may destroy evidences;

4. When there is reasonable ground to suspect that the defendant flees or is likely to flee;

5. When the dwelling of the defendant is uncertain; and

6. When there is reasonable ground to suspect that the defendant does or may do harm to life, body or property of a victim, a person who is deemed to know the facts necessary for the public trial of the case, or a relative thereof."

Other articles concerning Korea's criminal law that may be of interest to the reader:




  • Signs that You Hired a Great Korean Defense Attorney
  • Criminal Punishment of Corporations for Actions of Employees
  • Foreigners' Drug use in Korea
  • Criminal Lawyers in Korea
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  • info@ipglegal.com

    6/18/2015

    Korean Administrative Court Stands Up for the Right to Assemble: Korea Queer Culture Festival

    The Seoul Administrative Court has ruled in favor of the organizers of the Korea Queer Culture Festival in a case concerning the right to a permit to assemble.

    Because of the very vocal opposition of fundamentalist Christian groups, the NamDaeMoom Police refused to grant a permit to assemble.  These fundamentalist Christian groups argued, and the NamDaeMoon Police Department agreed, that amongst other things, that these Christian groups opposition to the event and the event itself will cause severe traffic disruptions and may lead to damage to the public safety (e.g. clashes between the religious group and festival attendants).

    The Court opined that a permit to assemble may only be denied when public safety is "directly" threatened and only as a "last resort."  The Court noted, inter alia, that in the present case, no indication of a direct threat to public safety was established and the measure was too extreme.

    The parade will be held on June 28.

    The case is a landmark decision in Korea's Constitutional Law.  The Korean Courts, in recent years, have stepped-in to prohibit the administration from abusing its discretion in many areas of public participation including the right to assemble.
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    Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

    Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

    Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes

    6/16/2015

    Employer Duties during Health Emergencies in Korea: MERS Outbreak in Korea

    A client, recently, contacted us requesting to know if an employee that had symptoms of Middle East Respiratory Syndrome ("MERS") may be requested to not come to work.  We believe it is best to err on the side of caution and request that the employee is tested for MERS and prohibit the employee from coming to work.  The government has established a hotline and visitation by a healthcare professional is even possible at one's home.  

    Mers Korea

    Occupational Safety & Health Act/Prevention of Contagious Disease Act
    The Occupational Safety and Health Act of the Republic of Korea ("OSHA Korea") mandates that an employer restrict the access to work of an employee with a contagious disease.  Of course, MERS is a contagious disease.  This obligation is an affirmative obligation of the employer under Article 45 of OSHA Korea and an affirmative duty of the employee/employer under the Prevention of Contagious Disease Act of Korea (PCDA). 

    Additionally, under  Article 5 of PCDA and employer has an affirmative obligation to report to the Ministry of Health & Welfare an suspected contagious diseases contracted by an employee.  

    Employers, under the aforementioned acts, may, also, prevent the entry of customers and screen customers for contagious diseases. 

    Labor Standards Act of Korea
    If an employer prevents an employee from coming to his/her place of employment,  the employer should pay 70% of the average wages of the employee under Article 46 of the Korean Labor Standards Act.  The following employer obligation may be suspended for "unavoidable" reasons.  We suspect the Ministry of Employment and Labor will hold that the present MERS outbreak, like the SARS outbreak, is "unavoidable" and, thus, will suspend this obligation. 
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    Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

    Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean profile may be found at: Sean C. Hayes