X10. Trademark overview
1. Functions of trademarks
1) Original function of trademark - The fundamental functions of trademark include quality assurance function (products of the same brand have the same quality), source indication function (products of the same brand have the same origin), and identification of other products (possible to distinguish from other products due to the trademark).
2) Derivative function of trademark - As a derivative function of a trademark, the function of advertisement is the first, which means that the trademark is used as a means of promoting sales of the product through psychological operation on the product. In addition, if a trademark is used repeatedly for a long time, the credit for the trademark is monetized, and if it becomes a famous trademark, it becomes a valuable means of competition, so the trademark itself is recognized as independent property rights.
2. Marks protected under the Trademark Act
A trademark is used by a person engaged in the production, processing, or sale of goods to distinguish his or her goods from that of others.
A service mark refers to a mark used by a person operating a service business to identify his/her service from that of other companies, and includes Google, E-mart, Pizza Hut, etc.
A collective mark refers to the exercise of a trademark or service mark at the jointly established legal entity level.
A business mark means a mark used by a person who does not use a trademark or service mark for the purpose of profit.
A certificate mark refers a mark used to indicate that the product or service meets a certain level of quality.
3 Adjacent Concepts of Trademarks
1) Trademarks and Trade names - Trademarks are physical marks attached to products to identify their products, the trade names are those of companies such as Samsung, Google, and Apple.
2) Trademarks and domain names (URL) - A trademark is a physical mark attached to a product for identification purposes. In the case of a domain URL, it started as a function of indicating the place of a host computer on the Internet, but with the development of e-commerce, the domain also functions as an indication of the source of goods and services.
4. Brand Trends
In 2011, Interbrand, a brand consulting group, surveyed and announced the world's top 100 brands. The survey result showed the characteristics of the IT industry that can survive only when consumer awareness and demands are quickly reflected in industry trends.
When a consumer decides whether to purchase a product, the primary criterion for judgment is the corporate brand. Global companies are investing in their brand management because the stronger the established brand, the easier it is to expand into other regions (countries) or other product areas.
5. The need for trademark protection
If you go to a Walmart, for example, you can easily find other products with different names but with similar packaging, packaging methods, and packaging containers. This is the concept of trade dress. When recognizing a trademark, not only the traditional character-oriented recognition, but also the special appearance of the product or the characteristic packaging itself can be recognized as a trademark. The lawsuit filed by Apple against Samsung Electronics in 2011 was also a trade dress lawsuit emphasizing the design specificity of the iPhone and iPad. In Korea, legislation on trade dress protection is still loose, and partial protection is provided through the Trademark Act and Partial Competition Prevention Act. It seem very necessary to come up with new legislations for trade dress protection as soon as possible.
6. Trademark problems in the Internet environment
If counterfeit products are traded in open markets such as Gmarket, 11st, and Auction, whether or not the operator of the open market is responsible in addition to the seller is a recent topic of discussion. In the Copyright Act, regulations were newly established to reduce the liability of the online service provider under certain conditions when online service users infringed on their copyright. It seems necessary for Trademark Act legislation to come up with similar acts to practice trademark law appropriately.
7. Trademark Search
Prior to filing a trademark application, examination of prior trademarks is required to prevent applications for non-registerable trademarks, and to increase the likelihood of trademark registration. The Korea Patent Information Service (Kipris) provides information on registered trademarks for free. The use of OR and AND operators, such as + or *, will be necessary to properly locate valid search results. If a similar product is found, it must be judged whether or not the trademark can be registered by closely comparing it with one's own trademark.
8. Trademark application
Since the trademark application has one-trademark-one-application principle, it is not allowed to apply for more than one trademark in one application. It is possible to designate multiple product classifications and service industry classifications for a single trademark. In this case, since the fee for application increases according to the number of designated service industry classifications, it may be economical to register only necessary services based on future business plans.
Contents to be written in the application include classification of trademark rights (service mark, certification mark, geographical indication collective mark, trademark, collective mark, business mark, geographical indication certification mark), applicant's code and name, products and services, and trademark types (general trademarks, three-dimensional trademarks, color trademarks, hologram trademarks, motion trademarks, sound trademarks, odor trademarks, other visually recognizable trademarks, and other visually unrecognizable trademarks). The applicant code is a unique identification code such as the applicant's resident registration number, which can be applied for and issued on the website of the Korean Intellectual Property Office prior to filing an application.
Attached documents to the application include a sample of a trademark. An application is completed by submitting the application form, attached documents, and fees to the Korean Intellectual Property Office in person or online.
9. Examination procedure for trademark application
When a trademark is applied for, an examiner examines whether the trademark can be registered or not. At this time, if a reason for rejecting the trademark application is found, the examiner shall send a notice to the applicant for submission of opinions and explain the reasons for rejection. The applicant who receives the written opinion must revise the application and submit the amendment within the period specified in the written opinion. If no ground for rejection of the trademark application is found, the applicant is notified of the decision to publish the application. After the decision to publish the application is served on to the applicant, the trademark is published in the Trademark Gazette for two months. During these two months, anyone can file an objection to the Korean Intellectual Property Office, citing the grounds for rejection of the trademark. Also, during this period, the applicant may make amendments, divisions, and changes to the application as necessary. If there is no objection or objection is not accepted after the publication of the application, a decision on registration is served by the Korean Intellectual Property Office. Applicants must pay the trademark registration fee for 10 years within 2 months from this (2 installments are possible) to confirm the registration of the trademark.