Intellectual Property 2026 Comparisons

Sources of Law

Matters concerning patents are governed, in principle, by the Patent Act, a statutory law. The Patent Act sets out the basic requirements, including patentability criteria, examination procedures, and the rights of patentees, while judicial interpretations from the Supreme Court and the IP High Court supplement these provisions. The examination guidelines issued by the Ministry of Intellectual Property (MOIP) serve as important reference materials in the patent registration process, but the ultimate standards are established by the courts.

Patentable Inventions

The “invention” eligible for patent protection is defined as “a highly advanced creation of technical ideas that utilises the laws of nature”. Industrial applicability is also one of the fundamental patentability requirements. Inventions contrary to public order and morality are excluded from patent protection.

Exclusions

• Software: Patentability is exceptionally recognised only when information processing via software is concretely realised using hardware.
• Business Models: Patentability is recognised only when the model is concretely realised using hardware.
• Medical Methods: In principle, these are excluded from patent eligibility as they are considered to lack industrial applicability. However, technologies that do not directly target the human body or are not combined with a practitioner’s medical acts, such as medical devices, pharmaceuticals, blood extraction, or cell culture performed ex vivo, may be recognised as patentable subject matter.
• Artificial Intelligence: While there are no clear criteria yet for AI software, the general view is that the same standards as those for general software apply. The inventorship of AI itself is not recognised.

Utility Models

Korea maintains a separate utility model system under the Utility Model Act, in addition to the Patent Act. This system protects technical ideas that utilise the laws of nature, relating to the shape, structure, or combination of an article. Unlike patents, utility models do not require a highly advanced level of creation.

Application and Examination

The process begins when an applicant submits an application to MOIP, including the specification and claims. A request for examination must be filed within three years of the application date. Upon receiving this request, an examiner assesses the invention against patentability requirements, specifically novelty, inventive step, and industrial applicability, as well as the sufficiency of the written description and the support of the claims by the specification. Should the examiner identify grounds for rejection, the applicant is provided an opportunity to submit a written argument or an amendment to the application. Once the patent requirements are satisfied, a notice of allowance is issued. Finally, patent rights are formally established upon payment of the registration fee.

Timeline and Costs

For standard examination, the process from the request for examination to registration typically takes about two years. If an application meets specific requirements, an accelerated examination can be requested, which may reduce the timeline to approximately six months. Official fees payable to MOIP include surcharges based on the number of claims.

Representation

For foreign applicants without an address or business office in Korea, the appointment of a local patent attorney is mandatory for filing procedures. While it is not a legal requirement for domestic applicants, it is common practice to appoint an agent.

Scope of Rights

A patent grants the patentee the exclusive right to commercially exploit the patented invention as a business.

Based on this, the patent holder may seek to enjoin infringing activities and claim damages.

Term and Maintenance of Patent Rights

The standard patent term is 20 years from the filing date, with the patent right taking effect from the registration date. To maintain the patent, the patentee must pay the initial three-year registration fee upon grant and subsequent annual renewal fees. If a payment deadline is missed, a six-month grace period applies. Failure to pay by the end of this period generally causes the patent to expire. However, the patentee may apply to restore the patent within three months after the grace period by paying double the fee, or in certain cases where the failure to pay was due to circumstances beyond the patentee’s control.

Term Extension

If a patented invention requires regulatory approval or registration under other laws, and the process involves time-consuming safety or efficacy testing, the patent term may be extended for up to five years. This provision applies to pharmaceutical and narcotic marketing authorisations under the Pharmaceutical Affairs Act and the Narcotics Control Act, as well as the registration of agrochemicals or their active ingredients under the Agrochemicals Control Act. Generally, only one patent term extension is granted per approved product.

Ownership

The right to obtain a patent initially vests in the inventor. A patent application may be filed by the person who holds this right, which is the inventor or their successor in title.

Employee Inventions

An invention qualifies as an “employee invention” if: (i) it falls within the scope of the employer’s business; (ii) it was made by the employee in the course of their duties; and (iii) the act resulting in the invention relates to the employee’s current or former duties. While ownership initially vests in the employee-inventor, the employer may acquire the rights through a pre-existing agreement. If the employee obtains a patent for an employee invention instead of the employer, the employer is granted a royalty-free statutory non-exclusive licence. If the employee transfers the patent rights or grants an exclusive licence to the employer, they are entitled to just compensation.

Universities

There is no specific statutory provision governing employee inventions at educational institutions. However, the prevailing view is that inventions resulting from research supported by university or government funding are treated as employee inventions. Conversely, research conducted jointly with private companies is typically classified as a “free invention”, with ownership rights determined by the terms of the specific contract.

Assignment and Licensing

The assignment of a patent right or the grant of an exclusive licence must be registered with the MOIP to be effective against third parties. While a non-exclusive licence becomes effective between the parties upon the signing of the agreement, registering it allows the licensee to assert their rights against any third party who subsequently acquires the patent.

Scope of Protection

The patentee holds the exclusive right to practise the patented invention as a business. The term “as a business” includes all activities performed for commercial purposes, excluding only personal or domestic use. The definition of “exploiting” is strictly prescribed by law: for product inventions, it encompasses manufacturing, using, assigning, leasing, exporting, or importing the product, or offering it for assignment or lease; for process inventions, it includes using the process or offering it for use and exploiting products obtained directly by that process. The scope of protection is defined by the matters recited in the claims.

Infringement

Patent infringement occurs when a third party, without authorisation, exploits a valid patented invention as a business within its scope of protection. Under the All Elements Rule, literal infringement is established if the accused product or process incorporates every element specified in the patent claims. Although not explicitly codified in the Patent Act, the doctrine of equivalents may be applied to find infringement if an element of the accused invention, while not literally identical, performs substantially the same function to achieve the same result as the patented element and such substitution would have been easily conceivable by a person skilled in the art at the time of infringement. While the manufacture or sale of only a portion of a patented invention generally does not constitute infringement, it is considered contributory infringement if the component is used exclusively to exploit the patented invention and has no other use.

Defences

Statutory defences against infringement include statutory non-exclusive licences, such as those based on prior user rights or intervening rights, as well as compulsory licences granted during national emergencies or via administrative adjudication. In practice, the most frequently used defences are non-codified, specifically the public domain defence – arguing that the accused product is based on publicly known technology – and the defence of abuse of rights. The doctrine of patent exhaustion is also recognised. Whether a FRAND commitment can serve as a direct contractual defence remains a subject of debate, with no established legal precedent.

Jurisdiction

Patent disputes in Korea follow a bifurcated system: civil courts adjudicate infringement cases, while the Intellectual Property Trial and Appeal Board (IPTAB) handles validity and scope disputes, including invalidation actions. Under the centralised jurisdiction system, first-instance civil patent infringement cases are handled by six specialised district courts: Seoul Central, Daejeon, Busan, Daegu, Gwangju, and Suwon. Appeals from first-instance civil court judgments and lawsuits challenging IPTAB decisions fall under the exclusive jurisdiction of the IP High Court, while patent-related criminal matters are handled by criminal courts.

Timeline

A first-instance patent infringement action typically takes about 12 to 24 months, depending on the complexity and significance of the case. If the case proceeds through appeal, the overall litigation period often extends to roughly two to three years. Invalidation proceedings before the IPTAB are generally faster, usually concluding within about 9 to 16 months, and often reach a decision while a parallel infringement action is still pending.

Remedies

Patentees may seek civil remedies, including permanent injunctions to restrain or prevent infringement, the destruction of infringing goods, and recovery of damages. To assist patentees with their burden of proof, the Patent Act provides specific methods for calculating damages. While Korean law generally adheres to a compensatory principle, it now permits punitive damages of up to five times the actual damages in cases of wilful infringement. Intentional infringement may also incur criminal penalties. Additionally, patent holders can request border control measures from the Korea Customs Service to suspend or seize counterfeit goods at the border.

Preliminary Injunction

For urgent relief, a patentee may file for a preliminary injunction against infringement before the final ruling on the merits. Since these proceedings are not ex parte, they involve an adversarial process similar to the lawsuit on the merits and typically take about 6 to 12 months depending on the complexities of the case.

Costs

In civil litigation, the prevailing party may recover a portion of their litigation costs proportional to their success rate. However, recovery of attorney’s fees is subject to statutory caps, making it difficult to recoup the full amount of actual expenses incurred.

Sources of Law

Trade mark protection is primarily governed by the Trademark Act, with the Unfair Competition Prevention and Trade Secret Protection Act (UCPA) applied supplementarily.

Protectable Signs

The Trademark Act defines a “trade mark” as a mark used to distinguish one’s own goods from those of others. The term “mark” is broadly defined to include symbols, characters, figures, sounds, scents, three-dimensional shapes, holograms, motions, and colours, regardless of their configuration or mode of expression, as long as they are used to indicate the source of the goods.

Unregistered Trade Marks

Korea operates under a registration-based system, meaning that only registered trade marks are protected under the Trademark Act. However, even unregistered marks may be protected under UCPA if they qualify as (i) well-known or famous marks; (ii) achievements resulting from substantial investment; or (iii) trade dress.

Essential Elements for Protection

The core requirement for trade mark protection is distinctiveness, which ensures the mark serves as a source identifier for goods or services. Marks that are generic, descriptive of a product’s characteristics (such as quality, efficacy, or raw materials), or consist of common advertising slogans or customary signs typically lack distinctiveness and are subject to absolute grounds for refusal.

Acquired Distinctiveness

Even if a mark is not inherently distinctive, it may still be registered if it has acquired distinctiveness through use. To prove acquired distinctiveness, the applicant must submit evidence such as the scale of advertising and promotion, sales and duration of use, market share, media coverage, and consumer survey results. In practice, the standard for recognising acquired distinctiveness is applied strictly, and it is relatively difficult to obtain registration on this basis.

Famous or Well-known Marks

Foreign trade marks that have achieved fame among domestic consumers may be protected under UCPA, even without registration in Korea. Even if a mark has not achieved fame, it may still be protected under the UCPA if it qualifies as an “achievement” resulting from the owner’s substantial investment and effort, and is misappropriated by another party through conduct contrary to fair commercial practices.

Effects of Registration

As mentioned above, a trade mark may be protected under UCPA even without registration, provided certain requirements are met. However, in order to secure the rights to claim injunction, preventive measures, and damages under trade mark law, trade mark registration is a prerequisite.

Procedures, Timelines and Costs

Applications can be filed with MOIP via either electronic or paper filing, and the designated goods and services must be specified according to the Nice Classification (NCL). After a formalities examination, a substantive examination is conducted regarding grounds for refusal.

If there are grounds for refusal, the examiner issues a Notice of Opinion Submission, and the applicant must submit an opinion statement or an amendment within one or two months. If there are no grounds for refusal or if they are overcome, the trade mark is published to inform the general public of the application and provide an opportunity for opposition. A third party may file an opposition within one month from the publication date. If no opposition is filed or if the opposition is dismissed, the trade mark right is established upon registration. Typically, cases without opposition or trial take approximately 6 to 12 months.

Fees consist of an application fee and a registration fee, which increase depending on the number of classes of designated goods/services (International Classification). The minimum fee for registering goods in one class is around KRW350,000.

Multi-class Applications

South Korea allows for multi-class applications, meaning multiple classes can be designated in a single application.

The term of a trade mark right is ten years from the date of registration and can be extended indefinitely through successive ten-year renewals. A renewal is granted upon payment of the registration fee within the prescribed period before or after the expiration date, without undergoing a separate substantive examination. To maintain the trade mark, the owner must “use” it in Korea – that is, use the mark on the designated goods or services in the ordinary course of trade. Merely advertising a registered trade mark without genuine distribution or an intent to distribute the designated goods in the domestic market is insufficient to establish legitimate use. Such nominal efforts made solely to avoid cancellation do not constitute valid use. If a mark is not used for three consecutive years without justifiable cause, any third party may file a petition for non-use cancellation. If the trade mark owner fails to prove actual use or a legitimate reason for non-use, the trade mark right will be cancelled, with the cancellation taking effect retroactively as of the date the petition was filed.

Exclusive Rights

A registered trade mark holder has the exclusive right to use the mark on designated goods or services and to prevent others from using identical or similar marks. For well-known marks, the scope of protection may extend to dissimilar goods or services to prevent the dilution of the mark’s distinctiveness or reputation, or to prevent the unfair exploitation of its fame.

Limitations or Defences

Article 90 of the Trademark Act provides limitations on the scope of trade mark rights. Specifically, trade mark rights do not extend to: (i) the use of one’s own name, trade name, portrait, signature, seal, or a famous pseudonym or stage name in a customary manner; or (ii) the use of common names, origin, quality, raw materials, efficacy, intended use, quantity, shape, price, or methods of production or usage of the designated goods or similar goods, provided these are indicated in a customary manner.

However, the Trademark Act stipulates the “own-name defence”, which defines the scope where trade mark rights do not apply even if another person’s trade mark rights are infringed, provided the mark is used as one’s own name. Furthermore, while the Trademark Act does not have an explicit provision regarding “fair use” of trade marks, the Supreme Court has consistently held that even if a mark identical or similar to another’s registered trade mark is used, it cannot be considered trade mark infringement if it is not intended to indicate the origin of goods and therefore cannot be recognised as trade mark use.

The Supreme Court recognises the principle of exhaustion of rights, under which once a trade mark owner or a party acting with their consent places goods bearing the registered trade mark on the market in Korea, the purpose of the trade mark rights in relation to those goods is deemed fulfilled and trade mark rights no longer restrict subsequent distribution of those goods. However, if a non-exclusive licensee uses the trade mark beyond the scope of the authorisation granted, that use may be treated as use without the trade mark owner’s consent. Even where the licensee breaches the contract, whether the exhaustion of rights is excluded depends on a comprehensive assessment of several factors, including the terms of the contract, whether the trade mark’s functions of indicating origin and guaranteeing quality are impaired, whether the rights-holder receives appropriate compensation, and the need to protect consumers.

Infringement

Trade mark infringement is established when a party uses an identical or similar mark on identical or similar goods or services, creating a likelihood of consumer confusion regarding the source of the goods. While the Trademark Act provides grounds to refuse or invalidate the registration of marks that might impair the distinctiveness or reputation of another’s brand, the act of dilution – such as blurring or tarnishment – is not explicitly classified as trade mark infringement under the Act. However, the unauthorised use of a sign identical or similar to a widely recognised mark in a manner that damages its distinctiveness or reputation is prohibited as an act of unfair competition under UCPA.

Jurisdiction

Trade mark disputes follow a bifurcated system: civil courts adjudicate infringement cases (unlike patent infringement cases, which are confined to specific dedicated district courts, trade mark infringement cases can be filed in any competent District Court) while the IPTAB handles matters concerning the validity and scope of trade mark rights, including invalidation actions. Appeals from civil court judgments and lawsuits challenging IPTAB decisions fall under the exclusive jurisdiction of the IP High Court. Criminal matters involving trade marks are handled by regular criminal courts.

Remedies

The primary civil remedies for trade mark holders include injunctions to restrain or prevent infringement, claims for the destruction of infringing goods, and recovery of damages. To assist trade mark holders with their burden of proof, the Trademark Act includes provisions for calculating damages and statutory damages. While Korea generally adheres to a compensatory damages principle, it has adopted a punitive damages system for wilful infringement, with the limit recently increased to up to five times the actual damages found. Intentional infringement is also subject to criminal penalties. Furthermore, trade mark holders can implement border control measures by registering their rights with the Korea Customs Service, allowing for the suspension or seizure of counterfeit goods at the border.

Sources of Law

Copyright protection in South Korea is primarily governed by the Copyright Act. A copyrighted work is defined as a creative work that expresses human thoughts or emotions. The Copyright Act specifically lists the following as examples of works: literary, musical, theatrical, artistic, architectural, photographic, cinematographic, diagrammatic, and computer program works.

Applied Art

Applied art works must satisfy two conditions in order to be protected under the Copyright Act: reproducibility for industrial use and separability from the article’s practical or functional elements. “Separability” means that the aesthetic element of the article is distinct from its functional features, is recognised as having its own independent character, and can be applied to other articles on its own. If an article’s shape simultaneously embodies both aesthetic and practical and functional elements, then even if the shape is aesthetically pleasing, it cannot be considered conceptually separable.

Under the Copyright Act, a work must be a creative expression of human thoughts or emotions, and originality does not require complete novelty but only that the expression is not a mere imitation and embodies the author’s own distinctive expression. Ideas themselves are not protected under copyright law. Registration is not required, but comes with certain benefits. Primarily, the matters recorded in the register (such as the author’s name and date of creation) are presumed to be true unless proven otherwise, shifting the burden of proof to the opposing party. Additionally, registration serves as public notice, enabling the copyright holder to assert their rights against third parties in cases of transfer or licensing, and facilitates the calculation of damages in infringement lawsuits.

Authorship and Joint Authorship

Copyright is divided into moral rights and economic rights. To qualify as a joint author, three requirements must be met: (i) an intent to create the work jointly; (ii) a joint contribution to the creative form of expression itself; and (iii) the resulting work must be a single, unified work in which the individual contributions cannot be used separately. The copyright in a joint work is, in principle, exercised by the unanimous consent of all authors, but an author may not unreasonably refuse to give that consent.

Work for Hire

A work created in the course of employment and published, or prepared for publication, under the name of a corporation or other entity is, in the absence of any different provision in a contract or in the company’s employment rules, deemed to have that corporation or other entity as its author. Publication is not required in the case of computer programs.

Economic Rights

Economic rights in copyright are exclusive rights to exploit a work for economic purposes, including the rights of reproduction, public performance, public transmission (such as broadcasting and online transmission), public display, distribution, lease, and the creation of derivative works. Economic rights may be transferred in whole or in part, and general succession, including inheritance, is also recognised.

Moral Rights

Moral rights protect the author’s personality interests and include the right of disclosure, the right of attribution, and the right of integrity. They are personal and non-transferable – even by contract, may be exercised by proxy only within limits that do not undermine their nature, and remain with the author. Although they expire at the author’s death, heirs or designated persons may, within a limited scope, seek cessation of infringement or restoration of reputation after death. Consequently, commercial agreements often include clauses where the author agrees not to exercise these rights, rather than transferring them, although the enforceability of broad waivers is subject to strict judicial scrutiny.

Economic rights in copyright last for the author’s lifetime plus 70 years, counted from 1 January of the year following the author’s death. For a joint work, the term is measured from the death of the last surviving co-author, and in practice the exact date of death may become a key issue.

Where the structure of rights differs from that of a natural person author – for example, in anonymous or pseudonymous works, works made for hire, or certain works created in the course of employment – the term is generally 70 years from publication if the work is published, and 70 years from creation if it has not been made public within 50 years after its creation. For audio-visual works, the term is 70 years from publication if published, and 70 years from production if not, reflecting the involvement of multiple contributors such as directors, screenwriters, and original authors.

Moral rights expire upon the author’s death, but Korean law allows heirs and certain family members to enforce a significant degree of post-mortem “personality protection”, including claims for cessation of infringement and restoration of reputation. Unlike the United States, Korean copyright law does not recognise a general termination right or automatic reversion of rights. Once economic rights are assigned or a long-term licence is granted, reclaiming them must be pursued through the terms of the contract or general civil law principles.

The Copyright Act sets out limitations on the scope of economic rights, allowing certain uses of works without the author’s permission in cases such as judicial proceedings, education, reporting on current events, and private use, provided the statutory conditions are satisfied.

Under the fair use principle, uses that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the author’s legitimate interests are permitted without the rights-holder’s consent. Courts adopt the four-factor test to comprehensively analyse the applicability of fair use.

Infringement

Copyright infringement is assessed based on substantial similarity and access. Access may be effectively inferred from circumstantial evidence, and in particular, it may be presumed where there is such striking similarity as to exclude the possibility of independent creation.

Remedies

Civil liability arises for intentional or negligent copyright infringement, and criminal liability may also apply if the infringement is intentional. Civil remedies include injunctions, destruction of infringing materials, and damages. Statutory damages and, in cases of wilful infringement, punitive damages may be awarded (quintuple damages).

Preliminary Injunction

A preliminary injunction may be sought for urgent relief against copyright infringement, but it is not granted ex parte and instead involves adversarial proceedings similar to a lawsuit on the merits.

In assessing substantial similarity, only protectable expressive elements should be compared. Where copying of a portion of the original work is alleged, the court should separately examine the originality of that portion, access, and substantial similarity, and then consider both the quantitative and qualitative significance of the copied expression within the work as a whole in determining infringement.

For computer programs, because the range of ways to express a given function may be limited, this constraint on expressive diversity should be taken into account when evaluating substantial similarity.       

Collective copyright management (including trust management) operates under statutory frameworks but is not mandatory. Collective management organisations license rights and collect and distribute royalties under approved tariffs, which may raise competition or fairness issues if excessive or discriminatory. Some uses are subject to statutory licences or remuneration schemes. Royalty disputes may be resolved through mediation or arbitration, and can escalate to civil litigation or administrative challenges to approved tariff schemes.

Governing Law of Industrial Designs

Industrial designs are primarily governed by the Design Protection Act. Under this Act, a design is defined as the shape, configuration, colour, or any combination thereof of an article, which creates an aesthetic impression through the sense of vision. Since the 2021 legislative amendment, the scope of protection has explicitly expanded to include partial designs, typefaces, and graphical user interface designs. Furthermore, multiple articles used together as a set may be registered as a “set of articles design”, provided that they maintain design unity as a whole.

Trade Dress

Trade dress refers to the composite of elements – such as appearance, decoration, colour, size, and shape – that collectively form the unique overall image of a product or service. In Korea, there is no single statute that independently governs trade dress as a distinct legal category.

Registered Designs

The Design Protection Act provides legal rights for registered designs. To qualify for registration, a design must meet the requirements of industrial applicability, novelty, and non-obviousness at the time of filing. Industrial applicability means that the design must be capable of mass production using industrial manufacturing techniques. Furthermore, designs are ineligible for registration if they are contrary to public order or morality, likely to cause confusion with the goods of another business, or consist solely of shapes essential to the article’s function.

Unregistered Designs

While unregistered designs are not protected under the Design Protection Act, they may still find protection through other legal frameworks. Designs that can be replicated as a shape independent of the underlying article may qualify as “applied art” (see 3.1 Legal Framework and Copyrightable Works) and thus receive protection under the Copyright Act. Furthermore, UCPA may provide relief by prohibiting the imitation of product shapes and the unauthorised use of another party’s “achievements” in ways that contravene fair commercial practices.

Trade Dress Protection

South Korean law does not recognise an independent trade dress right, but provides indirect protection under UCPA. Specifically, for acts causing business confusion, the UCPA explicitly encompasses within protected “business indications” the manner of selling goods or providing services, plus the overall appearance of business premises – including signs, exteriors, and interior decorations – yielding effects akin to direct trade dress protection.

Procedure

To register an industrial design in Korea, one must file an application with the MOIP including detailed drawings and a description of the article. Most industrial goods undergo a Substantive Examination System (taking 8–12 months), while fashion and fast-moving consumer items are eligible for the Partial-Substantive Examination System, which grants registration in as little as one to two months. Upon filing, the examiner reviews industrial applicability, creativity, and similarity to existing designs. Similarity is assessed by considering the article’s use and function together with its shape, form, and colour.

Terms of Protection

Design rights arise on the date of registration and remain valid until the 20th anniversary of the filing date. There is no renewal system.

Costs

Design registration requires payment of an application fee, an initial registration fee, and ongoing annual maintenance fees, with the fee structure differing depending on whether the design is subject to substantive examination or partial examination.

Scope of Protection

The design right holder exclusively holds the right to exploit the registered design or any similar design for business purposes. Here, “for business purposes” refers to commercial exploitation. Commercial exploitation includes manufacturing, using, assigning, leasing, exporting, or importing products incorporating the design, as well as offering such products for assignment or lease.

Infringement

Design right infringement occurs when a third party, without proper authorisation, commercially exploits a design that falls within the scope of a valid design right’s protection. Indirect infringement arises where a party, for commercial purposes, exploits a product used exclusively for manufacturing the registered design or a similar design.

Remedies

Civil remedies include claims for injunctions, destruction of infringing goods, and damages. To address the difficulty of proving actual loss, the Design Protection Act includes provisions that help estimate damages, and wilful infringement may give rise to punitive damages of up to five times the recognised loss. The law also provides for criminal penalties against design right infringers.

Preliminary Injunction

A preliminary injunction may be sought for urgent relief against design infringement, but it is not granted ex parte and instead involves adversarial proceedings similar to a lawsuit on the merits.

Border Measures

The Korea Trade Commission (KTC) is an administrative body that investigates and adjudicates unfair trade practices. If an intellectual property infringement is recognised as an unfair trade practice under the relevant unfair trade investigation law, the KTC may issue corrective orders, including suspending imports or exports, and may impose administrative fines.

Functionality Test

In determining whether a specific feature is dictated by function, courts consider the existence of alternative shapes capable of performing the same function as a key criterion.

Partial Designs and Exclusions

If a portion of a design forms an independent aesthetic impression, it may be registered as a partial design under the Design Protection Act. To apply for registration as a partial design, it is common practice to depict the part intended for protection with solid lines and the excluded parts with dashed lines.

Refusal and Invalidity

Designs dictated by technical necessity may theoretically be refused registration or invalidated. However, since it is rare for an entire design to consist solely of functional shapes, this provision is infrequently applied in practice.

Sources of Law

In Korea, trade secret protection under UCPA requires that the information be non-public, economically valuable, and kept secret. Information is considered non-public if it cannot ordinarily be obtained without access to the holder. A published patent application can destroy that secrecy, but the mere possibility of reverse engineering does not, by itself, negate non-publicity.

Types of Information

Information protected as trade secrets encompasses technical or business information. Court precedents recognise various types of information as trade secrets, including manufacturing methods, usage methods, customer lists, business plans, and personnel management techniques. Furthermore, passive or negative information, such as records of past failures, can also be protected as trade secrets if it contributes to saving time, costs, or effort.

To qualify as a trade secret, information must be managed as secret in a way that is objectively recognisable – eg, by marking it confidential, restricting access, or imposing confidentiality duties on recipients.

Under UCPA, the level of effort required to establish this requirement has been relaxed over time – from “substantial effort” to “reasonable effort” – and now it is sufficient that the information is simply managed as secret. In the case of disclosure to employees, the information should be marked confidential and access should be restricted, with secrecy management assessed in light of the company’s size and other circumstances. In the case of disclosure to a business counterparty, the key issue is whether a confidentiality obligation has been imposed. If the recipient is a third party with no direct contractual relationship, it must take action once it becomes aware that the information has been disclosed.

Under UCPA, trade secret misappropriation is fundamentally composed of two types: (i) illicit acquisition by third parties and (ii) breach of obligations by those bound by confidentiality duties.

The illicit acquisition by third parties refers to acts of acquiring trade secrets through theft, deception, coercion, or other improper means, as well as the act of acquiring, using, or disclosing them while aware of such improper acquisition. Disputes with competitors typically fall under this category.

Persons under a duty of confidentiality include not only those in a contractual relationship but also those who bear a duty of confidentiality under the principle of good faith even after the termination of a contract. However, in this case, the intent to obtain an illicit gain or to cause damage is required. Disputes with employees and investors typically fall under this category.

While trade secrets are theoretically protected in perpetuity as long as they remain confidential, this protection is effectively limited once a leakage occurs. In the event of misappropriation, while a trade secret owner maintains the right to claim both injunctive relief and damages, judicial precedent limits the duration of the right to injunctive relief. Courts generally hold that this right may only be exercised for the amount of time it would take for a competitor to acquire the information through legitimate means, such as independent development or reverse engineering. Once this period lapses, the owner is restricted to seeking only monetary damages.

Furthermore, although a trade secret may be protected from unauthorised disclosure, it loses its “non-public” status if it becomes generally accessible to the public, regardless of whether the initial leakage was accidental. However, the non-public status is not lost if the information is disclosed only to a limited group of individuals who are under a contractual or legal obligation to maintain its confidentiality.

Remedies

Owners of trade secrets possess the right to seek injunctive relief and compensatory damages against infringers. Recognising the inherent difficulty in proving the exact extent of financial loss, UCPA incorporates specific provisions to estimate damages, such as deeming the infringer’s profits as the owner’s loss or calculating based on reasonable royalty rates. Furthermore, in cases of intentional infringement, the Act allows for punitive damages of up to five times the actual proven loss, serving as a strong deterrent against wilful misappropriation.

UCPA also includes provisions for criminal penalties regarding the infringement of trade secrets. For domestic misappropriation, infringers face up to ten years in prison or fines of up to KRW500 million. If the secret is leaked abroad, the penalties escalate significantly to up to 15 years in prison or fines of up to KRW1.5 billion. These enhanced penalties, alongside quintuple (5x) punitive damages in civil cases, reflect the state’s commitment to deterring industrial espionage and protecting national economic security.

Confidentiality Protection during Litigation

In civil litigation involving trade secrets, parties may apply for a protective order to prevent the disclosure of confidential information, with violations subject to criminal penalties. However, the law stipulates that such protective orders cannot be issued regarding trade secrets that the alleged infringer has already obtained or possesses prior to the order. In practice, this creates a significant conflict between the need to specifically identify and describe the trade secrets for the purpose of litigation and the simultaneous requirement to maintain their confidentiality.

There is no legislation in South Korea that independently defines or governs know-how. However, the Supreme Court has defined know-how as “secret technical knowledge, experience, or a collection thereof, which is necessary for the actual application and combination of various technologies that are useful for industrial purposes” (Supreme Court 93Nu364 Decision on 27 July 1993). In practice, know-how is generally regarded as protected under the broader concept of “trade secrets” as defined in UCPA.

Types of Information

In Korea, it is generally understood that “know-how” refers to technical information such as technical processes, manufacturing methods, and algorithms. However, legal scholars argue that business-related information, such as customer lists, should also be included within the scope of know-how.

Requirements for Protection

The protection of know-how in South Korea remains legally ambiguous due to the absence of specific statutes or definitive case law. Legal scholars generally view that for know-how to be protected, it must be useful for business operations, possess economic value, and, crucially, remain non-public.

As noted above, know-how is not protected under a separate Korean statute, so ownership during employment is not easy to determine. Related trade secret principles are the best reference point. In Korea, trade secrets are typically technical information, and although they may raise questions similar to employee-invented works or works made for hire, there is little case law on whether information acquired by an employee during employment belongs to the employer. That said, the Supreme Court has held that where a trade secret also qualifies as an employee invention, disclosure by the employee to a third party before the rights have been assigned to the employer does not constitute unauthorised disclosure of the employer’s trade secret, because the employer is not yet the holder of the secret. The Court nevertheless found a possible breach of trust and recognised an obligation to transfer the secret to the employer. For non-invention cases, the prevailing academic view is that rights generally vest in the employer.

The contractual mechanisms used to protect know-how are largely the same as those used to protect trade secrets, because secrecy is the key requirement for both. Accordingly, it is common to include confidentiality clauses or NDAs that clearly define the scope of disclosure and the counterparty’s confidentiality obligations, and to specify the know-how covered in an annex or schedule as precisely as possible, since identifying know-how can be difficult.

Because reverse engineering is not prohibited in Korea, licence agreements should expressly prohibit it. In transfer agreements, the transferor’s non-use obligation is essential to protect the transferee’s know-how. In both cases, provisions on improved or modified technology should also be included.

Know-how may be transferred or licensed separately from trade secrets or patents, provided it can be sufficiently identified, but in practice it is usually covered together with other technical information in the same agreement. In that case, it is important to define the relevant know-how precisely. Unlike patents, no special formalities are generally required for transferring or licensing know-how, and it may be delivered in writing or electronically, or through technical assistance by engineers. That said, because know-how protection typically requires confidentiality, non-use, and anti-reverse engineering provisions, a written agreement is strongly recommended. Notarisation may be used to confirm authenticity or date, but it is not a condition for valid transfer or licensing.

In Korea, there is no separate body of law on know-how and reverse engineering, so the relevant trade secret principles are usually applied by analogy. As a general rule, reverse engineering is lawful, and a person who acquires information through lawful reverse engineering may also be treated as a trade secret holder if the information itself satisfies the trade secret requirements. For lawful reverse engineering, the product must generally be available on the market, and the mere fact that reverse engineering is possible does not automatically destroy non-publicity unless it is easy to do so. Contractually, reverse engineering may be restricted, and in software agreements such clauses are common. If such a clause exists, reverse engineering by the counterparty can be treated as a contractual breach and restricted accordingly.

Database Right

Under the Copyright Act, a person who has made a substantial investment of human, financial, or material resources in the creation of a database, or in the updating, verification, or supplementation of its contents, is granted the right to reproduce, distribute, broadcast, or transmit the database in whole or in substantial part. This right arises upon completion of the database and lasts for five years from the beginning of the following year and, if a substantial subsequent investment is made to update or supplement the database, the five-year protection period restarts for that specific updated portion. Infringement is punishable by up to three years’ imprisonment or a fine of up to KRW30 million, or both.

Other Protections

Information contained in a dataset may also be protected, where the relevant requirements are met, as a trade secret, a copyright work, or by contract. In addition, UCPA prohibits the unauthorised use of certain data as an unfair competition act.

Scraping

Crawling or scraping may be treated as infringement of database rights under copyright law, misappropriation of achievements under UCPA, or unlawful intrusion under the Act on Promotion of Information and Communications Network Utilisation and Information Protection, depending on the circumstances.

AI-Generated Outputs

There are currently no specific statutes or court precedents regarding the copyrightability of AI-generated outputs. According to government guidelines, the effect of copyright registration for works created using generative AI extends only to the parts involving human creative contribution. If the human contribution amounts to merely trivial changes and fails to meet the requirement of creativity on its own, copyright registration is not possible.

In such cases, the person who created the work is eligible to apply for copyright registration as the author. Conversely, the AI developer cannot be registered as the author because they merely provided the tool for creation and did not actually create the work.

Inventorship

MOIP and lower courts maintain the stance that AI cannot be an inventor. In 2022, a patent application listing an AI named ‘DABUS’ as the inventor was invalidated. This decision was upheld in the related administrative litigation, and a ruling from the Supreme Court is currently pending.

Authorship

Since the government places significant importance on the creativity contributed by humans, businesses seeking to protect ownership of AI-assisted creations must demonstrate the specific nature of the human contribution. If a work created by an employee using AI qualifies as a work made in the course of employment and is published (or scheduled to be published) under the company’s name, the company may apply for copyright registration as the author.

Using copyrighted works as training datasets may raise copyright infringement issues. Specifically, the process of collecting a training dataset involves reproducing works. Furthermore, during the preprocessing and training phases, large volumes of works are processed collectively and repetitively, potentially resulting in the storage and use of copies. Consequently, infringements of rights such as the right of reproduction and the right of transmission may arise.

Additionally, using trade secrets as training datasets may constitute misappropriation under UCPA. Acts involving the unauthorised collection and use of trade secrets can be deemed acts of trade secret misappropriation.

Currently, South Korean law does not recognise exceptions for text and data mining (TDM). Although several bills proposing amendments to the Copyright Act to introduce TDM exceptions have been submitted, none have yet been enacted into law.

Therefore, using copyrighted works or trade secrets as training datasets primarily raises risks of provisional injunctions, claims for damages, and criminal penalties stemming from copyright infringement or trade secret misappropriation.

Infringement

There is no single statute that comprehensively governs cases where generative AI is used to infringe upon another party’s rights. Instead, liability is determined based on the specific nature of the infringed right, such as copyright, trade secrets, or personal information.

Evidence and Causation

Substantive judicial discussions regarding evidence and causation specifically related to AI have not yet fully emerged in litigation. According to guidelines from the Court AI Research Group, a judicial research body, judges should assess the admissibility of AI-generated materials submitted as evidence in accordance with the Criminal Procedure Act and related rules. This process involves soliciting the opposing party’s views on the admissibility of the submitted materials before making a ruling. Furthermore, the guidelines recommend that when documents, photos, audio, or videos suspected of being created by AI are submitted as evidence, the submitting party should be required to disclose whether AI was used in their creation.

Platforms and Tool Providers

Platforms and tool providers may face liability for joint torts if they facilitate infringing activities. According to court precedents, joint tort liability for aiding and abetting through omission can be established when: (i) the illegality of the copyright-infringing post is evident; (ii) it is clearly apparent that the service provider either specifically recognised the circumstances of the posting or could have recognised the existence of the post; and (iii) the provider has the technical and economic capacity to manage and control such posts.

As a general rule, multiple IP rights can overlap for the same subject matter, so it is uncommon to have to choose only one form of protection. The main exception is the choice between patent protection and trade secret protection, since they differ on whether the technology is disclosed.

The choice depends on factors such as whether the invention meets patentability requirements, the desired term of protection, the nature of the technology, and how easily infringement can be detected. Patents require novelty and inventive step, but once granted, they provide exclusive rights for up to 20 years from the filing date. Trade secrets require no registration and can last indefinitely as long as secrecy is maintained, but they do not prevent others from independently developing the same or similar technology.

Accordingly, where reverse engineering is easy, patent protection is often preferable because it secures exclusivity for 20 years despite disclosure. Where reverse engineering is difficult, or infringement is hard to detect, trade secret protection is usually the more strategic choice.

South Korea generally permits cumulative protection for the same subject matter under multiple IP regimes. Provided the requirements for each regime are met, overlapping protection is available. For instance, a product’s shape registered as a design may also qualify for copyright protection if it constitutes a creative work expressing human thoughts or emotions, while trade dress can be protected under both the Trademark Act and UCPA. Courts assess the validity of each claimed right independently: if all requirements are satisfied, the product or feature receives cumulative protection. However, even if a single infringing act violates multiple rights, double recovery for the same damage is prohibited.

To be recognised as a trade secret, information must be non-public, have economic utility, and be maintained as a secret. Non-publicity means the information is not known to persons engaged in the same industry or those likely to obtain economic benefits from it.

Before a patent application is filed, the technology remains undisclosed and can thus be protected as a trade secret. Even during the application process, protection is generally available if 18 months have not yet elapsed since the filing date, as the technology has not yet been made public. However, once 18 months have passed since the filing date, the patent application must be published in the Patent Gazette. From that point onwards, the technology no longer meets the non-publicity requirement and loses its status as a trade secret.

Similarly, if the technical content is disclosed through patent publication, it fails to meet the non-publicity requirement and cannot be protected as a trade secret. Furthermore, when a patent expires or is invalidated, the technology generally enters the public domain and can no longer be protected as a trade secret.

Under Korean law, a trade mark is a mark used to distinguish one’s own goods (including service-related items, excluding geographic indications) from others’. Trade dress lacks explicit definition but gains indirect protection under UCPA, which includes under business indicia, methods of selling goods/services or overall appearance of business premises such as signage, exterior, or interior decoration. Design means the shape, configuration, colour, or combination thereof of an article (including parts, fonts, images) that aesthetically appeals visually. Purely functional shapes indispensable to the article’s function are ineligible for registration.

Trade marks protect source identification, whereas designs safeguard aesthetics and industrial applicability. Product shapes or packaging can enjoy concurrent protection if criteria are met. Trade marks and designs are not mutually exclusive. Even design-eligible shapes qualify for trade mark rights if used to distinguish one’s goods from others’, beyond mere decoration.

Logos, artistic elements, or branding can be protected under both copyright and trade mark law if they meet the respective requirements for each. Copyright and trade mark rights are not mutually exclusive. Therefore, even if a figure constitutes a trade mark under the Trademark Act, it can also be protected as a copyrighted work if it satisfies the requirements under the Copyright Act. The fact that such a work is used or intended to be used to indicate the origin of goods does not affect its eligibility for copyright protection.

While copyright protection does not require registration, the logo or design must qualify as a “creative work expressing human thoughts or emotions”. Conversely, to be protected under trade mark law, the mark must be registered as a trade mark to distinguish one’s own goods.

Even a registered trade mark owner cannot use their registered trade mark without the consent of a copyright holder if the trade mark conflicts with another party’s pre-existing copyright that arose before the trade mark’s filing date. Conversely, if a copyright owner intends to use their work to indicate the origin of goods (ie, as a trade mark), they may face trade mark infringement issues if there is an identical or similar prior registered trade mark.

Under South Korean law, asserting multiple IP rights simultaneously within a single lawsuit is permissible. Claims based on distinct IP rights (eg, patents, trade secrets, trade marks) can be joined in one action; provided they follow the same type of procedural rules. Since claims for injunctions, disposal, and damages arising from IP infringement are standard civil claims, they can generally be combined into a single suit absent special circumstances.

If infringement of multiple IP rights is established, the court independently evaluates the availability of remedies for each right based on its specific requirements and statutory provisions.

Where a rights-holder holds multiple claims against an infringer arising from the same legal act or relationship, these claims generally compete to achieve the same economic satisfaction. Consequently, once one claim is satisfied, the others are extinguished to that extent. Therefore, even if different IP rights are infringed, double recovery is not allowed if the substance of the infringement is identical. However, double recovery is not an issue if the infringing acts are distinct, such as when one part of a technology is protected by a patent and another part by a trade secret.

Intellectual property rights arise independently in each country under the principle of territoriality, so Korean-registered rights are principally governed by Korean law. However, Korea’s IP regime is harmonised with international standards like the WTO TRIPS Agreement, sharing significant commonalities with foreign laws.

Procedurally, where international jurisdiction and choice of law issues arise in legal relationships involving foreign elements, the Private International Law Act governs these matters. Accordingly, suits regarding the creation, validity, or extinction of intellectual property rights established by registration or deposit may be filed exclusively with South Korean courts if such rights are registered or an application for registration has been filed in South Korea; suits concerning contracts such as transfer of intellectual property rights, establishment of security interests, licenses, and the like may be filed with South Korean courts where the intellectual property right is protected, used, or exercised in South Korea or the right relating to the intellectual property is registered in South Korea; and suits for infringement of intellectual property rights may be filed with South Korean courts where the infringing act is committed in South Korea, the result of the infringement occurs in South Korea, or the infringing act is directed toward South Korea. As to the choice of law, the protection of intellectual property rights shall be governed by the law of the place where the infringement occurs.