Korean Data Privacy Act: Need for Compliance Audit for your Korean Company

The European Union General Data Protection Regulation (EU GDPR) focuses on the data security of personal data of users of the internet. As the EU offers a potentially lucrative market for online businesses for many Korean companies, South Korea was eager to amend its existing Act on the Promotion of IT Network Use and Information Protection of Korea (“Korean Network Act”) based, at least, partially on bench-marking of the EU GDPR. We suggest all companies, doing business in Korea, conduct via a professional in data privacy – a compliance audit. We suggest the professional has an understanding of not, only, Korean Law, but the law of the European Union as it relates to data privacy. Fines and criminal penalties for violation of data privacy laws have increased in Korea. Korean Network ActThe Korean Network Act was amended in December of 2018. Korea, the EU and other nations are in ongoing

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Amendment to Korea’s Intellectual Property Registration System: Korea IP Law Updates

South Korean organizations, companies and startups will, likely, in the near future experience a quicker and increasingly more efficient Patent and Intellectual Property Registration System in Korea and internationally based on developments within the IP5. Top IP officials in Korea are gearing up, in order to help South Korean organizations, companies and startups register their Intellectual Property more efficiently.  It seems like the effort is a serious attempt to expedite approvals and lesson application burdens for those doing business in Korea. IP officials from Korea, the United States, China, Japan and the European Union (a.k.a IP5) recently gathered in Incheon and asserted that they shall utilize A.I. technology and other future advances to improve the worldwide Patent Application System. To accomplish this objective, IP5 consented to organize a research team, containing Patent and IT specialists from these four countries and the EU. This team will start working on an A.I.

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Korean Patent Law’s Trade Secret Protection: Amendment to Trade Secret Law in Korea

The amended Patent Act of Korea (“Korean Patent Act”) and the amended Unfair Competition Prevention and Trade Secret Protection Act (“Korean Trade Secret Protection Act”) of Korea shall enter into force on July 9, 2019. The most important key developments are great criminal penalties for trade secret misappropriations; damage awards up to three times of the actual damage regarding infringements of patent rights or trade secret rights; eased litigation requirements for the claimants; and revised basis for calculating royalty damages. These amendments are expected to lead to a heightened protection for intellectual property rights in Korea. The 2019 Major Key Changes in the Korean Patent Act and the Korean Trade Secret Protection Act: Increased Criminal Penalties under the Korean Trade Secret Protection Act Under the current regulations, a criminal penalty for a trade secret misappropriation is narrowly defined and considered by many legal practitioners and academics as not protective enough

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Licensee has Standing to Challenge the Validity of a Patent in Korea. Korean Licensing & Royalty Law Updates

Prior to a recent holding by the Supreme Court of Korea, the Korean Supreme Court had conflicting holdings on the definition of an “interested party” under Korean Patent Law. In order for a party to challenge the validity of a patent, in Korea, a party challenging the patent must be an “interested party.” Until this year, it was not clear whether a licensee of the patent in question is an “interested party” with standing to challenge the patent in Korea. A recent holding by the Supreme Court shall, likely, lead to substantially increased risk of non-payment of royalty payments and litigation in Korean courts. We, thus, suggest all that are receiving, or are expected to receive, royalty payments from Korean companies to have a comprehensive review of your patents and licensing agreements. A good deal of the risk can be mitigated by a nuanced license agreement and a Korean-tailored patent.

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Korea Licensing Agreements: Licensing of Technology, Trademarks and other IP in Korea

We always advise our clients for every license agreement that there is a very high probability that at the end of the agreement license payment obligations will not be honored by the Korean licensee. The same holds true for our Chinese and Southeast Asian practices. If a Korean licensee is not going to continue the relationship with the foreign licensor, many Korean companies simply choose to forego the obliged payments in favor of not responding to emails, phone calls and mail.  We represent many foreign companies that retain us to collect on overdue payments from the Korean licensees. We are often disappointed at seeing license agreements that are simply form agreements from U.S./European Law firms or agreements drafted by Korean law firms with Korean and foreign attorney hacks. Sorry to call fellow attorneys hacks, but after reading one of the license agreements from one of the “ubiquitous big firms,” the term

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Korea Blockchain Law Society Founded: Korean Crptocurrency Law Updates

The inaugural meeting of the Blockchain Law Society of Korea was held last week.  We wrote on the Korean Law Blog articles on Korean Blockchain/Alt Currency Law and shall be participating in the Blockchain Law Society and updating the reader on issues addressed by the Blockchain Law Society.  You shall find more articles on Blockchain, Alt currenices, Korean Crypto-currency Law and like topics on this blog over the next couple of months. We are looking forward to more lively discussions and hope that the Korean Blockchain Law society shall lead to a comprehensive Korean CryptoCurrency -Blockchain Law that does not lead to destruction of a unique and potentially profitable business opportunity for entrepreneurs in Korea and entrepreneurs that wish to invest in Korea.  We hope that foreign investors are, also, considered in these meetings and in the drafting of these laws.  Foreign investors play a key part in Korean business and locking

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Basics to Successfully Outsourcing Production of your Product to Korea: Korea OEM Basics

So you have decided to outsource the manufacturing of your products to Korea. Good choice in choosing quality-focused Korea over quantity-focused China, but don’t make the bad choice of not considering basic basic legal due diligence necessary to protect your good name, technology, brand and the future of your business. If you plan on just dealing through a purchase order (PO) in Korea, you are heading down a path that may lead to a kick in the behind. The recession hit small/medium-sized manufacturers even harder than large manufacturers. Many of these SMEs have decided that the only way to survive is OEM (original equipment manufacturing) outsourcing to China, India, and other parts of Asia. I, also, do a good deal of enjoyable work in China. I am, however, always happy to see clients choose Korea over China, since many of the headaches you will experience in China and India will never

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“Fair Use” Korean Copyright law

Dear Professor Hayes : I am in the process of completing a book on the modern history of the Republic of Korea. A good deal of my work cites news reports, published journals, and first hand reports mentioned in other books, Web sites and personal blogs. My book chronicles the modern developments from the eyes of foreigners who reside or resided in Korea. My publisher wants to confirm that Korea has a “fair use” doctrine, therefore, allowing me to cite the works of others.  Author in Rhode Island Dear Author: In general, the copyright holders, in Korea, may solely economically exploit a copyrighted work for the life of the author of the work plus 50 years. Korean Copyright Law provides that copyright infringers may be held liable in civil court and even punished in criminal court. In recent years, the Korean prosecution has been vigorous in prosecuting copyright infringers and

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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

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Publicity Rights/Portrait Rights in Korea: Entertainment Law Basics in Korea

The Seoul Central District Court delivered, in mid 2016, a decision ruling that an individual’s publicity rights (portrait rights) were violated by a person sharing an image on a public social media site.  The violators were sharing the images for commercial purposes and shared the images without the publisher’s consent (Seoul Central District Court 2015GaDan5324874). FACTS Mr. A posted photos of himself on his Instagram Page.  Mr. B utilzed those photos on Naver’s Band without Mr. A’s consent. Band is a Korean social media site. C company, also, posted the photos on Facebook without Mr. A’s consent.  Thus, Mr. A’s photos were re-posted from Mr. A’s Instagram Page and posted on Naver’s Band by an individual and posted on Facebook by a company.  Seemingly, the purpose of the re-posting was to promote the pages and products of Mr. B and Company C.  The attorneys for Mr. B and Company C

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Korean Trademark Act Revised: Korean Trademark Act of 2017

The Korean Trademark Act is, often, criticized by scholars and Korean legal practitioners for not being an effective means of enforcing copyrights and for being overly cumbersome.  The new changes are a step in the right direction.  Korea promulgated on September 1, 2017 the revised Korean Trademark Act. The following are the major changes. Any party may file an action to cancel a a trademark for non-use under revised Korean Trademark Law This change shall, likely, increase the number of litigants.  Prior to this change, courts would require litigants to establish that the litigant is an “interested” litigant.  The change may cause an increase in litigation. Effect of Cancellation on the filing date of the non-use action no longer the cancellation decision under revised Korean Trademark Law. Prior to this change, the effect of cancellation was the date of cancellation decision, thus, limiting potential monetary damages for infringement during the

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English-speaking Korean lawyers and International Lawyers at International Law Firm in Korea discussing issues of Korean Law

IPG Legal is a leading client-focused international law firm with offices in Korea that is, often, selected over the ubiquitous Korean Law Firms when success is essential and success depends on nuanced street-smart advice, proactive  and unconflicted representation. Our attorneys are, intentionally. different from the crowd.  From our retired judge partners to our junior associates, we are all trained with an intense focus on client success, lawyer proactivity, and to understand the nexus between your commercial and legal needs. Our attorneys shall never push to you useless memos, non-nuanced legal advice or get you into litigation without an honest assessment of the merits and shortcomings of the matter. We are  – intentionally different from the crowd.  Globally Experienced – Locally Connected.  We are IPG.  Korean Legal Practices Korean Antitrust, Competition & FTC Arbitration, Int’l & Domestic Korean Civil Litigation Korean Criminal Defense Korean Corporate Law & Compliance Korean Employment, Labor &

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Rights Management Services/Agencies in South Korea: Copyright/IP Licensing Societies in Korea

The following is a list of the major Copyright Management/Licensing Services in Korea.  The list shall be updated periodically. Rights Management Societies in Korea Literary  Korean Society of Authors Music Korea Music Copyright Association Korean Society of Composers, Authors & Publishers Theater  Korea Scenario Writers Association General Reproduction & Transmission Korea Reproduction and Transmission Rights Association Theatrical Reproduction & Transmission Korea Film Producers Association Broadcast Writers Korea TV & Radio Writers Association Performers in Musicals Federation of Korea Music Performers Actors Korea Broadcast Performers Association Recordings Recording Industry Association of Korea  Public Works Korea Cultural Information Service Agency Movie Distribution Movie Distributors Association of Korea Press  Korea Press Foundation (c) Sean Hayes – SJ IPG. All Rights reserved.  Do not duplicate any content on this blog without the express written permission of the author. [email protected]

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Korean Patent Court’s Intellectual Property Infringement Guidelines

Early in 2016, the Patent Court of Korea published Guidelines Regarding the Appeals of IP Infringement Actions (“IP Appeal Guidelines”) based on the reality that the Patent Court of Korea has assumed control over appeals of Korean IP infringement lawsuits. Overall, Korean legal practitioners welcomed the focus of the Korean Patent Court on increasing professionalism while developing an efficient procedure in disposing of cases. Significant developments, at the Patent Court, are ongoing and we shall update the reader on the Korea’s Patent Court’s jurisprudence over the next couple of months. The main focus of the IP Appeal Guidelines, inter alia, is to detail specific appeal deadlines, hearing procedures, discovery procedures and the basic procedure for the handling of evidence. The Guidelines are a great step in the right direction if the Court wishes to focus on increasing professionalism and efficiency. The most successful development is that the Patent Court has

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Happy Lunar New Year from IPG Legal

We in Korea will be having a four day holiday to celebrate Lunar New Year.  Happy New Year to all our Korean friends. We would, also, like to wish a Happy New Year to all of our Chinese friends.  Have a wonderful Lunar New Year! Sean Hayes may be contacted at: [email protected]  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

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How the Korean Government Monitors Bloggers in Korea

A recent news report raised concerns as to whether Korean police followed proper process concerning the regulation and monitoring by the government of internet blogging. Last week, A South Korean blogger was reportedly ordered by local police to take down posts featuring North Korean propaganda.  According to the account, an unidentified blogger was told to remove nine posts written between 2007 and 2011 that featured alleged pro-North Korea statements because the blog postings were considered harmful to young people. The article, also, mentioned that experts approached in connection with the story said that such an order, without a ruling from the Communications Commission that is charged by law to regulate internet postings would be beyond the scope of police powers. Korea has a history of regulating internet postings beginning with the first internet regulation ever created – entitled the Telecommunications Business Act (TBA).  The TBA was enacted over 20 years. The

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Searching Trademark & Service Marks in Korea: Register your Trademarks/Service Marks Prior to Doing Business in Korea

Prior to marketing products, services or a business in Korea do a thorough search for like trademarks/service marks in Korea, then, have your trademarks/service marks registered in Korea – if you don’t want the added cost of litigating a matter at a Korean court.  If you have patents, don’t forget to, also, register your patents and other intellectual property. Your U.S. and E.U. trademark, service mark and patent filings are not enough. These “international filings” only gives you a grace period to file outside of these jurisdictions.  The Korea Intellectual Property Organization has a website, in English, that has a decent search system.  Regrettably, not all of the information on the site is in English.  This search is not the end of the matter.  You should, obviously, also hire a professional to assist. Upon filing, also, make sure you develop at strategy to protect your Intellectual Property.  Your strategy should,

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Korean IP Infringement Jurisdiction Centralized at Five Korean District Courts and the Patent Court of Korea: Korean Intellectual Property Case Updates

Patent Infringement Case Jurisdiction in Korea This month, the Korean National Assembly passed amendments to both the Korean Court Organization Act and the Civil Procedure Act to, inter alia, give exclusive jurisdiction, in Intellectual Property infringement matters, to five major district courts in Korea with an appeal from these five district courts going, now, to the Patent Court. At present, an IP infringement cases may be brought at any district court with an appeal to a high court.  Appeals of IP Tribunal Cases were, only, allowed to the Patent Court. These amendments shall be effective in any district court cases filed after December 31, 2015. We expect to see this jurisdictional change to allow cases to progress in a more efficient matter, allow judges increased opportunities to specialize and lead to more consistency in the application of law. Other articles that may be of interest: Korean Business/Service Marks Protection under

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Starting a Manufacturing Business in South Korea: Top 14 Things to Know Before you Start a Business in Korea

Korea, in most cases, is a much better choice for the manufacturing of chemical, petroleum, construction equipment, complex crafted metals, specialty steel, automotive parts, semi-conductor, medical and pharmaceutical equipment and goods than China and most nations in Asia, because of Korea’s skilled work force, government incentives and increasingly transparent business practices. In many cases, manufacturing in Korea will not, in the end, be more costly than manufacturing in China, because of the increased efficiency of Korean workers and the, often, lower cost of doing business.  China is no longer cheap and China will never be easy. However, before going into any manufacturing arrangement in Korea here are the Top 14 things you need to know before investing money in Korea in a manufacturing venture or like Korean venture. The list assumes that you will have a local company as your JV partner in this manufacturing venture in Korea (you don’t

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Korean 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

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