Trade Dress Law in Korea. The Copycat May Catch the Mouse

A blog I just, recently, ran into posted an interesting post on Hermes trouble with copycats in Korea. The blog may be found at: Fashion Law Blog.

Hermes lost, recently, a High Court case in Korea.  Hermes argued, in part, that:

” [Defendant’s] bags – which bear a striking resemblance to its famed Birkin and Kelly styles – run afoul of the Unfair Competition Prevention and Trade Secret Protection Act, which prohibits, ‘causing confusion with another person’s goods by using signs identical or similar to another person’s name, trade name, trademark, container or package of goods or any other sign widely known in the Republic of Korea as an indication of goods, or by selling, distributing, importing or exporting goods with such signs.'”

Hermes, in short, specifically argued that:

“. . . that in recreating the trade dress in its most famous bags – namely, the distinctive three lobed flap design that fits around the base of the handle, padlock closure at its center, key fob affixed to a leather strap, and thin horizontal strap that fits over the flaps of its Birkin bag, for instance – [Defendant] was in breach of Korean unfair competition law.”

The High Court, however, ruled in favor of the Korean company.  The High Court opined that:

“. . . unique ‘eyes’ design was a key element of the bags’ identity, and the subsequent popularity of the products among consumers. According to the decision, ‘Taking into consideration the creativity, uniqueness, the details of production, and the cultural values of the bags altogether, [Defendant’s] products have achieved their own version of originality and aesthetics by incorporating various rare images together.'”

The post may be found at: Court Rules Against Hermes  in Battle of LookAlike Bags in Korea.  Blog is worth a read.  I will be writing about a few new legal blogs over the next couple of weeks – check back.
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean 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 is known for his proactive New York-style street-market advice and his aggressive and non-conflicted advocacy.  Sean works with some of the leading retired judges, prosecutors and former government officials working in Korea.

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

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