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(1) Filing an Application
1) Name(s), Address(es) and Nationality of applicant(s);
2) Name(s), Address(es) and Nationality of creator(s);
3) One set of drawings or photographs comprising the front elevation, rear elevation, top view, bottom view, right side view, left side view (if not symmetrical), perspective view and other views(e.g. a sectional view), if necessary or useful in describing the design;(Where the article representing the design is of a flat shape, only the top and the rear views need to be included in the drawings.)
4) Priority Documents(if any); and
5) Power of Attorney simply signed by the applicant
Priority Claim
If convention priority is claimed, basic filing particulars of priority application (including the application number, the filing date, and the country priority application was filed) on which a claim of priority is based, must be specified in a Korean application. A convention design application must be filed in Korea within six (6) months of the date that the basic foreign application has field. A certified copy of the basic application may be submitted to the KIPO up to three (3) months after the Korean application is filed.
Power of Attorney
Though original Power of Attorney must be filed when filing, in URGENT case faxed copy thereof will be available provided original Power of Attorney should be filed later, within about a month from the filing date.
Use of General Power of Attorney form
Use of a General Power of Attorney is recommended because it can be used for future cases of the same applicant, thus saving the client time and expenses. A General Power of Attorney form can cover applications for patents, utility models, trademarks and designs and subsequent proceedings. However, filing of oppositions and procedures in inter partes trial cases requires a separate Power of Attorney.
Similar Design
Anyone who is either the owner of a design right or the applicant for registration of a design right is entitled to obtain a similar design registration for a design which is similar to either his or her registered design or to his or her pending design application. It is not possible to obtain a similar design based on an existing similar design registration.
Multi-design
For examination-free goods of the same class, up to twenty designs can be filed as a single application ("Multi-design application"). A multi-design application can be filed to cover a design and its similar designs en bloc.
Secret Design
Any applicant for registration of a design may request that the design be kept secret for a designated period not exceeding three years from the date that the design right is registered.
(2) Formality Examination
☞ Same as that of patent.
(3) Early Publication per Request
A design application may, upon the request of the applicant, be published in the official gazette entitled "Design Laid-open Gazette". Such request for publication may not be made once the applicant has received a copy of the first final decision of approval or rejection of application. Once a design application has been laid-open to public inspection, any person may submit to KIPO information relevant to the registrablility of the design concerned together with any supporting evidence. The revised Design Act offers a special legal effect like a patent upon a laid-open design application: if the applicant sends a warning letter to an alleged infringer after his design application has been laid-open, it will mean that the relevant period for computerization of a reasonable amount of compensation will commence from the date that letter is received. Such compensation, however, can only be secured upon the registration of the design.
(4) Substantial Examination
Automatic Examination
Unlike a patent or utility model application, a request for examination of a design application is not required for the initiation of substantial examination. Design applications are automatically taken up for examination in the order of the filing date thereof. It generally takes about one year or so to complete the examination from the filing date. A request for expedited examination may be made once the design application has been laid-open upon to public inspection the request of the applicant and upon showing that it is presently being infringed.
Requirement for Registration
(a) It should fall under the definition of a design given in the Design Act ; A design which is eligible for protection under the Design Act is defined as "the shape, pattern, color or any combination thereof in an article which produces an aesthetic impression on the sense of sight. Therefore, to be protected under the Design Act, a design should be embodied on an article. The term "article" is generally considered as a tangible, movable and independent thing.
(b) Industrial applicability ; the designs should be mass-produced in an industrial method.
(c) Novelty ; the designs should not be identical or similar to the design which was publicly known or worked or published within or outside the Republic of Korea before the application for design registration.
(d) Creativity ; the design should be a design which could not have been easily created by a person having an ordinary skill in the relevant field from the shape, pattern, color or a combination thereof which was widely known in the Republic of Korea.
(e) Furthermore, it should not be any of the unregistrable designs provided in Article 6 of the Design Act, such as designs which disturb the public order or good morals and a design which is identical with or similar to the flag, emblem of nation or public organizations.
Request for exception against loss of novelty
Even if a design was published or known or worked by the applicant himself prior to the filing date of the design application therefor, it is deemed to be novel provided that the design application is filed within 6 months after the disclosure was made. Any person who desire to have his design be presumed novel must submit a written statement to that effect to KIPO at the time of filing the design application. Any document substantiating such statement should be also submitted within 30 days from the filing date.
(5) Rejection
☞ Same as that of patent.
(6) Registration
If the examiner finds no ground for rejection or he is persuaded by the applicant's argument and/or amendment, he will render a decision to grant registration. There is no publication for opposition of a design application under the SES after the substantial examination. However, upon the registration, the design registration is published in the official gazette called "Design Registration under the SES Gazette".
(a) Payment of Registration fee
When a design applicant receives a notice of decision to grant a registration he should pay, as a registration fee, the first 3 years' annuities in a lump sum within 3 months from the date of receipt of such notice. In case he fails to pay the registration fee within the three-month period the registration can still be made by paying twice the usual fee within 6 months after the expiration of the three-month period. Therefore, if the registration fee is not paid within 9 months from the date of receipt of a notice of decision to grant a registration, the design application will be deemed to have been abandoned.
(b) Issuance of Registration Certificate
When a patent right is registered with payment of the patent fee, a Certificate of Patent Registration shall be issued.
(c) Term of design right
From the date of registration to fifteen (15) years from the date of registration
(d) License
An exclusive license comes into existence by an establishment contract and registration of the exclusive license. When a design right is jointly owned, the consent of all the co-owners is required in granting an exclusive license. In the license agreement, the term (for example: for 10 years), the area (for example: in Korea) and content (for example: for production and sales) can be restricted as desired. A nonexclusive licensee has no obligation to register the license.
Recordation of design license
(aa) Exclusive or Non-exclusive license contract;
(bb) Certificate of corporate nationality of the registrant (or certificate of individual nationality);
(cc) Powers of attorney of the registrant and the licensee; and
(dd) Certificate of corporate nationality of the licensee (or certificate of individual nationality)
(e) Recordation of assignment
Assignment of either a pending application or a registered right must be recorded to enforce the legal rights of its owner(s). To record an assignment, the following documents must be filed:
(aa) Deed of Assignment by the assignor only; and
(bb) Power of Attorney from both the assignor and the assignee.
(7) Appeal and Trial
☞ Same as that of patent.
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(1) Multi-design Application
Under the NSES, an applicant may file an application for twenty designs or less which fall under single class in accordance with the Korean Classification of Products for the Registration of Designs.
The documents required, such as claim of priority, drawings for the design application under the NSES is same as that of under the Substantial Examination. However an applicant wishing to make an multiple application should submit a specification of plural designs containing matters such as serial number of designs, and drawings, names and claims of priority of each design.
(2) Formality Examination and Registration
Under the NSES, examiners conduct formality check and examination to determine whether the design will disturb the public order or good morals only. The formality check on the design application under the NSES is same as that of under the SES. If the examiner founds a flaw in the formality mentioned above, the examiner must issue a notice of preliminary rejection stating the reason for rejection and give the applicant an opportunity, time limit to submit a written opinion or amendment within the specified. If the examiner finds no flaw in the formality examination, he will render a decision to grant registration without substantial examination.
(3) Publication and Post-grant Opposition
KIPO publishes a "design registration gazette under the NSES" after the design applicant pay the registration fee. Once a design has been published in the Registration Gazette any person may file an opposition against the registration of the design under the NSES within 3 months from the publication date. The ground of opposition are same as that of requirement of registration under the SES; novelty, creativity, industrial applicability, and other unregistrable designs.
(4) Rights conferred to the design registration under the NSES
The rights conferred to the design registration under the NSES in exclusive right are same as that of under SES. If the registration under the NSES is invalidated by opposition or trial, the right conferred to the registration under the NSES will retroactively lose effect. Furthermore, if the alleged right holder injures a person by exercising his forged right, he has to compensate for the damages regardless of his design registration under the NSES
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