Let's continue the discussion on “Introduction to Intellectual Property and Understanding Intellectual Property”. Among them, today we will look at “the content of design rights”.
Design rights can be obtained easily and at low cost compared to trademark rights or patent rights, and management is also easy. In particular, since the design right protects the aesthetics of the appearance of the product and even protects the same and similar designs, the effect may be large if the design is new and novel. However, in the case of design rights, it is easy to imitate, and there are cases where the actual creator is not protected due to the simplification of the examination process.
1. Contents of design right
1) Duration: Design right is valid for 15 years from the date of registration. Since the duration of the similar design right is the same as the basic design right, the similar design right also expires along with the basic design right.
2) Effect of design right: The effect of a design right extends to the same or similar design. As for whether the design is similar or not, the judgment process through the subjective standard, the overall and comprehensive observation, and the objective standard is schematized. Judging by the Supreme Court precedents, it seems that confusion is decided by a holistic and comprehensive judgment.
3) Restriction of effect of design right: The validity of a design right may be limited for various reasons. First, the design right does not apply to designs used in ships, vehicles, aircraft, etc. which only pass through the country, to designs that have been carried out for research or test purpose, ,and designs that have been in the country since the time the design was filed. In addition, there may be restrictions on the effect of the registration right holder's establishment of inspection right, statutory inspection right, and compulsory inspection right. In addition, there may be restrictions due to conflicts of use between patent rights, copyrights, and design rights, and the effect of design rights is limited even for the use of fonts that have a large impact on users in printing and publication fields.
2. Remedy for Design Rights
Infringement remedies for design infringement include negotiation, which means reconciliation or mediation. In addition, there are civil remedies divided into the right to claim non-infringement, the right to request an injunction for non-infringement, the right to claim compensation for damages or the right to claim the return of unreasonable profits, and the right to claim credit recovery. Criminal remedies also exist, and settlement by the industrial property dispute mediation system has the same effect as a settlement agreement under civil law. All of these remedies start with sending a warning letter to the person who misused the design right. Conversely, if you receive a warning of infringement, you can first deliver an answer to the warning letter, and with the help of an expert, you must determine whether you are really infringing the other person's design right. And if you are infringing on the other party's design right, you can request immediate reconciliation. Otherwise, you can file cancelation request to the warning letter.
Today, we learned about “the content of the design right”. Next, we will discuss the “unique system under the Design Protection Act”.
*I am a student learning IP, not an IP expert. Translation is also Google translator and my insufficient English skills. I hope it will be helpful for those who do not have the relevant knowledge or who want to learn about IP.
*The above is what I learned from a book compiled by the Korean Intellectual Property Office and Korea Invention Promotion Association (published by Pakmungak) entitled “Introduction to Intellectual Property, Understanding Intellectual Property”.
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