NATIONAL ORGANIZATIONS STANDING IN FILING APPLICATIONS OR REQUESTING TRIAL
September 26, 1997 the Supreme Court made an ex officio ruling on whether Kyung-buk National University as a
national organization has a standing as an applicant or a party and made a decision that
Kyung-buk National University (filed an
application in the name of "Kyung-buk National University, president Kim
Ik-dong", and subsequently appealed to the Appellate Trial Board and the Supreme
Court)cannot be an applicant or a party in a
trial because it is not a corporate entity. The Supreme Court's rationale is that a
national organization does not have a standing because only a natural person or a legal
entity can be an applicant or a party to a trial and the national organization is neither.
The KIPO has recently proposed "Draft Guidelines for
Application or Request for Trial in the Name of a National Organization" on December
10, 1997 by this ruling.
The draft Guidelines provide that applications based on an invention made by official
personnel will have to designate applicant's name as nation.An invention made by an official
personnel designates applicant's name as
president of the national organization to which the official personnel belongs. In
particular, the draft Guidelines will provide that "applicant is to be designated as
Republic of Korea including the name of the president of the national organization."
COLLEGE ENTRANCE EXAM QUESTIONS
DESERVE PROTECTION AS LITERARY WORK UNDER THE COPYRIGHT LAW
November 25, 1997 the Supreme Court ruled that the college entrance examination is a
literary work that can be protected by the Copyright Law. The college entrance examination
primarily relates to historical facts, principles of natural science,
foreign languages made of quotations or modifications to certain portions of
textbooks, reference books, and many others it is reasonable to consider the examination questions a
literary work worthy of protection by the Copyright Law in that the examination questions
are the individual works of the examination writer(s), not a copy of others' work, and has
originality in its expression.
It means that if the work owes its origin to the author(the work is
independently created, and not copied from other works, and accordingly can be
distinguished from works of others') it has "originality" (or,
"individuality")
necessary to be deemed worthy of being protected by the Copyright Law. However, it is
noted that in the Daehan Textile case (Supreme Court Decision 94 Do 3266, February 23,
1996) the Supreme Court recognized that the degree of originality in applied art work,
such as textile designs, which is intended to be mass produced should be relatively higher
than that of other genres.With respect to the originality of work, it would
appear that the Supreme Court takes a more rigid standard in applied art work, which can be
protected by the Design Law.
Another way of Estimating Damages Caused by Trademark Infringement
A ruling on September 12, 1997 regarding estimation
of damages to a trademark owner caused by a third party's infringement of a trademark stated,
"In principle, damages are estimated by
multiplying gross sales of infringing goods by the net profit rate of the infringing goods,
or by multiplying the number of infringing goods sold by the net profit for each of the
infringing goods sold. However, damages may also be estimated by multiplying the net
profit rate of trademark owner's goods by the gross sales of infringing goods."
The above case is analyzed to the effect that it is for strengthening the protection
of trademark rights by reducing the burden of proof of the trademark owner in case of
a trademark infringement.
Advertising of Parallel Imports Constitutes Infringement of Trademark Right
The Seoul District Court ruled in a case on provisional disposition, on October 1,
1997, that advertising of "parallel imports" ("gray market" goods) may constitute
infringement of a trademark right.
According to the judgment, parallel importers are not entitled to advertise the
goods using the trademark, even though acts of importation and distribution into Korea
of genuine goods of foreign manufacturers by a third party without authorization from
the domestic trademark owner or exclusive licensee does not constitute infringement
of the local trademark right.
In relation to this judgment, there is an opposing argument that since some kind
of advertisement, e.g., catalogues, billboards, labels on goods to which the trademarks
have been applied, may be necessary for selling the goods, the act of advertising
"parallel imports" should also be permitted as long as parallel importation is allowed.