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UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.19289 | 20230929 |
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| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.13081 | 20150128 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.11963 | 20140131 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.11112 | 20120315 |
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| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.9895 | 20100401 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.9537 | 20090325 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.9225 | 20081226 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.8767 | 20071221 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.7289 | 20050701 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.7095 | 20040721 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.6421 | 20010701 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.5814 | 19990701 |
| UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT | No.5621 | 19990101 |
| UNFAIR COMPETITION PREVENTION ACT | No.4478 | 19921215 |
| UNFAIR COMPETITION PREVENTION ACT | No.3897 | 19870101 |
| UNFAIR COMPETITION PREVENTION ACT | No.911 | 19620101 |
CHAPTER I GENERAL PROVISIONS
| Article 1 (Purpose) |
The purpose of this Act is to maintain the order of sound transactions by preventing unfair competitive acts, such as unjust use of another person's trademark, trade name, etc., known to the public in Korea, and any act infringing on another person's trade secret.
[This Article Wholly Amended by Act No. 4478, Dec. 31, 1991]
| Article 2 (Definitions) |
For the purpose of this Act, the definitions of terms shall be as follows:
<Amended by Act No. 4478, Dec. 31, 1991; Act No. 6421, Feb. 3, 2001; Act No. 7095, Jan. 20, 2004>
| 1. | The term "unfair competitive act" means the act falling under any of the following items: |
| (a) | An act of creating confusion between one's own goods and any other person's goods, by using any one identical with or similar to a name, trade name, trademark, container or package of goods of the other person, or a mark indicating the other person's goods, which is known to the public in Korea, or by selling, distributing, importing or exporting goods using any of the above enumerated manners; |
| (b) | An act of creating confusion with any other person's business facilities or activities by using any one identical with or similar to the other person's name, trade name, or emblem, or other mark indicating the other person's business which is known to the public in Korea; |
| (c) | Other than the acts of creating confusion under items (a) and (b), an act of damaging the identity of mark or the fame of any other person, by using any one identical with or similar to a name, trade name, trademark, or container and package of goods of the other person, or other mark indicating the other person's goods or business, which is known to the public in Korea, without any justifiable grounds as prescribed by the Presidential Decree such as noncommercial uses, or by selling, distributing, importing or exporting goods using any of the above enumerated manners; |
| (d) | An act of misleading the public to understand the place of origin of any goods either by falsely marking that place on any commercial document or communication, in said goods or any advertisement thereof or in any manner of misleading the general public, or by selling, distributing, importing or exporting goods bearing such false mark; |
| (e) | An act of making a mark misleading people to understand as if any goods were produced or processed in an area other than that where said goods are produced, manufactured or processed, on any commercial document or communication, in said goods or any advertisement thereof, or in any manner of misleading the general public, or an act of selling, distributing, importing or exporting goods bearing such mark; |
| (f) | An act of assuming any other person's goods, or an act of publicizing any goods or making a mark in any manner of leading the public to misunderstand their quality, contents, manufacturing process, use, or quantity, in latter goods or advertisement thereof, or an act of selling, distributing, importing or exporting goods using such method or mark; |
| (g) | An act that any agent or representative of a holder of the right to a trademark registered with any party to the Paris Convention for the Protection of Industrial Property (hereinafter referred to as the "Paris Convention"), with any member state of the World Trade Organization, or with any signatory state of the Trademark Law Treaty, or to a trademark similar thereto, or any person who has been an agent or representative of such holder within one year before the date of conducting such act, uses the trademark, without any justifiable grounds, on the goods identical with or similar to the designated goods of the relevant trademark, or an act that such agent or representative sells, distributes, exports, or imports the goods using the relevant trademark; |
| (h) | An act of registering, holding, transferring or using the name, firm name, trade mark, mark or other same or similar domain name of other person that are widely known in the country by any person who holds no justifiable title to do so for any of the following purposes: |
| (ⅰ) | The purpose of selling or renting marks including trade marks, etc. to any person who holds a justifiable title thereto or any third party; |
| (ⅱ) | The purpose of impeding the registration and use of the domain name by any person who holds the justifiable title therefor; and |
| (ⅲ) | The purpose of making commercial profits; and |
| (i) | An act of transferring, renting, exhibiting, importing or exporting goods that are manufactured by counterfeiting the form (referring to the shape, appearance, color and gloss or the combined one of them, including the form of test products and the form in goods brochure) of goods that are manufactured by other person: |
| (ⅰ) | An act of transferring, renting or exhibiting, importing or exporting goods that are manufactured by counterfeiting the form of goods for which 3 years lapse from the date on which the form of the goods, including test products, takes shape; and |
| (ⅱ) | An act of transferring, renting, exhibiting, importing or exporting goods that are manufactured by counterfeiting the common form of goods that are identical to goods that are manufactured by other person (in the case where the goods of the same kind are nonexistent, referring to the goods that are identical or similar to other goods in terms of function and efficiency); |
| 2. | The term "trade secret" means any technical or operational information useful for any production and sale methods and other business activities, which is not known to the public, has an independent economic value, and has been maintained in secret by considerable effort; |
| 3. | The term "act of infringing on trade secret" means any of the following acts: |
| (a) | An act of obtaining any trade secret by a larceny, fraud, menace, or other unfair means (hereinafter referred to as an "unfair obtaining act"), or an act of using trade secret so obtained or disclosing it to the public (including an act of informing any specific person thereof while keeping it undisclosed; hereinafter the same shall apply); |
| (b) | An act of obtaining any trade secret with knowing the fact that any unfair obtaining act was involved, or without knowing such fact by gross negligence, or an act of using trade secret so obtained or disclosing it to the public; |
| (c) | An act of using any trade secret or disclosing it to the public with knowing the fact that any unfair obtaining act was involved after obtaining it, or without knowing such fact by gross negligence; |
| (d) | An act that a person who is obliged to keep any trade secret undisclosed owing to any contractual duty or otherwise, uses or discloses it to the public with the intention to obtain any unfair profit or to inflict any damage on the person holding it; |
| (e) | An act of obtaining any trade secret with knowing the fact that it is disclosed to the public in such manner as provided in item (d) above or the fact that such disclosing act was involved, or without knowing such fact by gross negligence, or an act of using said trade secret so obtained or disclosing it to the public; and |
| (f) | An act of using any trade secret or disclosing it to the public with knowing the fact that it is disclosed to the public in such manner as provided in item (d) or the fact that such disclosing act was involved after obtaining it, or without knowing such fact by gross negligence; and |
| 4. | The term "domain name" means the figures, letters, signs or the combined ones of them that are equivalent to digitalized addresses on the Internet. |
CHAPTER II PROHIBITION, ETC. OF UNFAIR COMPETITIVE ACTS
| Article 3 (Prohibition of Use of National Flag or Emblem, etc.) |
| (1) | Nothing identical with or similar to the national flag or emblem or other badges of a party to the Paris Convention, a member state of the World Trade Organization, or a signatory state of the Trademark Law Treaty, or a mark of any international organization, may be used as trademark: |
| (2) | Nothing identical with or similar to any mark for a control or certification which is used by the government of a party to the Paris Convention, a member state of the World Trade Organization, or a signatory state of the Trademark Law Treaty, may be used as trademark: |
| Article 4 (Claim for Prohibition of Unfair Competitive Act) |
| (1) | Any person whose business profit is or might be infringed by any unfair competitive act, may file a claim before a court for the prohibition or prevention of such unfair competitive act against a person committing or attempting to do such act. <Amended by Act No. 6421, Feb. 3, 2001> |
| (2) | When the person files the claim referred to in paragraph (1), he also may file a claim for the disposal of goods that has caused the unfair competitive act, the removal of facilities that are used for the unfair competitive act, the cancellation of the registration of the domain name subject to the unfair competitive act and measures necessary to ban or prevent the unfair competitive act. <Amended by Act No. 7095, Jan. 20, 2004> |
[This Article Wholly Amended by Act No. 4478, Dec. 31, 1991]
| Article 5 (Liability for Damages Caused by Unfair Competitive Act) |
Any person who infringes on another person's business profit and inflicts any damage on another person by an unfair competitive act committed intentionally or by negligence, shall be liable to compensate such damage: Provided , That in the case of subparagraph 1 (c) of Article 2, it shall be limited to the unfair competitive acts committed on intent. <Amended by Act No. 6421, Feb. 3, 2001>
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
| Article 6 (Restoration of Credit Lost by Unfair Competitive Act) |
A court may, upon receiving a claim from a person whose business profit is infringed on by an unfair competitive act, order a person who has intentionally or negligently downgraded another person's business credit by the unfair competitive act, to take any measures necessary for restoring the business credit in addition to or in lieu of compensation for damage as prescribed in Article 5: Provided , That in the case of subparagraph 1 (c) of Article 2, it shall be limited to the unfair competitive acts committed on intent. <Amended by Act No. 6421, Feb. 3, 2001>
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
| Article 7 (Investigation, etc. into Unfair Competitive Act) |
| (1) | Where the Commissioner of the Korean Intellectual Property Office deems it necessary to confirm the unfair competitive acts provided for in subparagraph 1 (a) through (g) of Article 2 or a violation of the provisions of Article 3, he may have the relevant public official enter the |
business facilities or manufacturing facilities to investigate into the documents, books, or products concerned or collect and examine the minimum amount of products necessary for investigation. <Amended by Act No. 7095, Jan. 20, 2004>
| (2) | A public official who conducts investigation under paragraph (1) shall carry a certificate indicating his authority and show it to the person concerned. |
[This Article Wholly Amended by Act No. 5621, Dec. 31, 1998]
| Article 8 (Recommendation on Correction of Violations) |
If the Commissioner of the Korean Intellectual Property Office deems that there is an unfair competitive act provided for in subparagraph 1 (a) through (g) of Article 2 or an act contrary to the provisions of Article 3, he may make to the violator any recommendation necessary for correcting it, such as discontinuance of said act, removal or disuse of the mark concerned and so forth, with a period not exceeding thirty days fixed. <Amended by Act No. 4478, Dec. 31, 1991; Act No. 7095, Jan. 20, 2004>
| Article 9 (Hearing of Opinion) |
If it is deemed necessary for recommending the correction as prescribed in Article 8, the Commissioner of the Korean Intellectual Property Office shall hear the opinion of the party concerned, interested person or witness under the conditions as prescribed by the Presidential Decree. <Amended by Act No. 4478, Dec. 31, 1991>
CHAPTER III PROTECTION OF TRADE SECRET
| Article 10 (Claim for Prohibition of Act Infringing on Trade Secret) |
| (1) | If any business profit is or might be infringed on by any act infringing on the trade secret, the person who holds said secret may file an claim before the court for prohibition or prevention of said act against the person who infringed or intends to infringe on the trade secret. |
| (2) | The person holding the trade secret may, in filing a claim as referred to in paragraph (1), additionally claim a disuse of anything causing the infringing act, removal of facilities offered for said act, or any measures required for its prohibition or prevention. |
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
| Article 11 (Liability for Damage Caused by Infringement on Trade Secret) |
Any person who has inflicted any damage on a person holding a trade secret by infringing on any business profit through an act intentionally or negligently infringing on such trade secret, shall be liable to compensate such damage.
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
| Article 12 (Restoration of Credit of Person Holding Trade Secret) |
A court may, upon a request of a person holding a trade secret, order a person who has intentionally or negligently downgraded such business credit of a person holding a trade secret by any act infringing on said secret, to take any measures required for restoring such business credit, in addition to or in lieu of the compensation for damages as prescribed in Article 11.
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
| Article 13 (Special Cases on Bona Fide Person) |
| (1) | The provisions of Articles 10 through 12 shall not apply to any act that a person who has lawfully obtained a trade secret through a transaction, uses or discloses it to the public within the limit allowed owing to said transaction. |
| (2) | For the purpose of paragraph (1), the term "person who has lawfully obtained a trade secret" means a person who has obtained such secret without knowing, by no gross negligence, the fact that the trade secret was unfairly disclosed, or the fact that any unfair obtaining or disclosing act was involved, at the time it is obtained as prescribed in subparagraph 3 (c) or (f) of Article 2. |
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
| Article 14 (Prescription) |
The right to file a claim for prohibition or prevention of an act infringing on any trade secret as prescribed in Article 10 (1), shall be extinguished by prescription, if it is not exercised for three years after the person holding said secret comes to know the fact that in case where an act infringing on said secret continues, his business profit is or might be infringed by such act, and the person who has committed such act. This provision shall also apply in case where ten years have passed since such infringing act began. <Amended by Act No. 5621, Dec. 31, 1998>
[This Article Newly Inserted by Act No. 4478, Dec. 31, 1991]
CHAPTER IV SUPPLEMENTARY PROVISIONS
| Article 14-2 (Presumption of Damages) |
| (1) | In case where any person whose business profits are infringed by an unfair competitive act or an act of infringing on trade secrets requests the compensation of damage under Article 5 or 11, and in case where the person who has infringed on the business profits transfers the goods causing the unfair competitive act or the act of infringing on trade secrets, the amount obtained by multiplying the transferred quantity of the relevant goods by the profit amount per unit quantity of the goods, which the person whose business profits are infringed would be able to sell if there were no relevant unfair competitive act or act of infringing on trade secrets, may be made as the damages of the person whose business profits are infringed. In this case, the damages shall be limited to the amount obtained by multiplying the quantity, calculated by deducting the volume of actual sales from the volume of possible production by the person whose business profits are infringed, by the profit amount per unit quantity: |
| (2) | Where a person whose business profit is infringed by an unfair competitive act or an act of infringing on trade secrets requests compensation for damages under Article 5 or 11, if the person who infringes the profit gets any gain by such offense, the amount of such gain shall be presumed to be the amount of damage sustained by the person whose business profit is infringed. |
| (3) | Where a person whose business profit is infringed by an unfair competitive act or an act of infringing on trade secrets requests compensation for damages under Article 5 or 11, he may request compensation for damages by considering the amount equivalent to that which he may usually receive for the use of a mark, such as a trademark, put on the goods, etc. subjected to the unfair competitive act or for the use of the trade secrets infringed, as the amount of damage which he sustains. |
| (4) | Where the amount of damage which is sustained by an unfair competitive act or an act of infringing on trade secrets exceeds the amount under paragraph (3), the request for damages may be made even to the excess. In this case, if the offense against the business profit is committed with no intent or gross negligence by the person who infringed on the trade secret, a court may take this into account in calculating the amount of damage. <Amended by Act No. 6421, Feb. 3, 2001> |
| (5) | In case where it is extremely difficult to establish the facts to prove the amount of damage in view of the nature of relevant facts, while it is recognized that the damage has been incurred, in the lawsuit for the unfair competitive act or the act of infringing on trade secrets, the court may recognize a resonable amount of damage on the basis of the entire tenor of oral proceedings and the results of evidence investigations, notwithstanding paragraphs (1) through (4). <Newly Inserted by Act No. 6421, Feb. 3, 2001> |
[This Article Newly Inserted by Act No. 5621, Dec. 31, 1998]
| Article 14-3 (Submission of Data) |
In a lawsuit alleging the infringement of business profits by an unfair competitive act or an act of infringing on trade secrets, a court may, upon the request of a party, order the other party to submit such data as may be necessary to calculate the amount of damage incurred by the offense: Provided , That the same shall not apply where the holder of the data has a good reason for the refusal of the submission thereof.
[This Article Newly Inserted by Act No. 5621, Dec. 31, 1998]
| Article 15 (Relation to Other Acts) |
| (1) | If there are any provisions of the Patent Act, the Utility Model Act, the Design Protection Act, or the Trademark Act which are different from those of Articles 2 through 6 and 18 (3) of this Act, such provisions shall preferentially apply. <Amended by Act No. 6421, Feb. 3, 2001; Act No. 7289, Dec. 31, 2004> |
| (2) | If there are any provisions of the national flag or emblem of the Monopoly Regulation and Fair Trade Act, the Act on Fair Indication and Advertisement, or the Criminal Act which are different from those of subparagraph 1 (d) through (f) of Article 2 and Articles 3 through 6 and 18 (3) of this Act, such provisions shall preferentially apply. <Amended by Act No. 5814, Feb. 5, 1999; Act No. 6421, Feb. 3, 2001> |
[This Article Wholly Amended by Act No. 5621, Dec. 31, 1998]
| Article 16 Deleted.<by Act No. 5621, Dec. 31, 1998> |
| Article 17 (Delegation of Authority) |
The authority of the Commissioner of the Korean Intellectual Property Office, which is prescribed by this Act, may be delegated partially to the Special Metropolitan City Mayor, Metropolitan City Mayors, or Do governors, under the conditions as prescribed by the Presidential Decree. <Amended by Act No. 5454, Dec. 13, 1997>
| Article 18 (Penal Provisions) |
| (1) | Any person who has made an illegal profit or used the useful trade secrets of any enterprise abroad for the purpose of causing damage to such enterprise or leaked such trade secrets to any third party knowing that they are used or will be used abroad shall be punished by imprisonment with prison labor for not more than 7 years or a fine equivalent to the amount ranging from not less than 2 times to not more than 10 times the amount of the profit in property. <Amended by Act No. 7095, Jan. 20, 2004> |
| (2) | Any person who has acquired and used useful trade secrets of any enterprise for the purpose of making an illegal profit or causing damage to the enterprise or leaked the trade secrets to any third party shall be punished by imprisonment with prison labor for not more than 5 years or a fine equivalent to the amount ranging from not less than 2 times to not more than 10 times the amount of the profit in property. <Amended by Act No. 7095, Jan. 20, 2004> |
| (3) | Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding thirty million won: <Amended by Act No. 6421, Feb. 3, 2001; Act No. 7095, Jan. 20, 2004> |
| 1. | A person who commits an unfair competitive act under subparagraph 1 of Article 2 (excluding items (h) and (i)); and |
| 2. | A person who uses as trademark, in contravention of the provisions of Article 3, any one identical with or similar to the badges or marks falling under any of the following items: |
| (a) | The national flag, emblem or other badges of a party to the Paris Convention, a member state of the World Trade Organization, or a signatory state of the Trademark Law Treaty; |
| (b) | The mark of an international organization; and |
| (c) | The mark for a control or certification which is used by the government of a party to the Paris Convention, a member state of the World Trade Organization, or a signatory state of the Trademark Law Treaty. |
| (4) | The punishment of imprisonment and fine under paragraphs (1) and (2) may be concurrently imposed. |
| (5) | Deleted. <by Act No. 7095, Jan. 20, 2004> |
[This Article Wholly Amended by Act No. 4478, Dec. 31, 1991]
| Article 18-2 (Attempted Crime) |
Any person who has attempted a crime provided for in Article 18 (1) and (2) shall be punished.
[This Article Newly Inserted by Act No. 7095, Jan. 20, 2004]
| Article 18-3 (Preparation and Plot) |
| (1) | Any person who has prepared or plotted for the purpose of committing the crime provided for in Article 18 (1) shall be punished by imprisonment with prison labor for not more than 3 years or a fine not exceeding 20 million won. |
| (2) | Any person who has prepared or plotted for the purpose of committing the crime provided for in Article 18 (2) shall be punished by imprisonment with prison labor for not more than 2 years or a fine not exceeding 10 million won. |
[This Article Newly Inserted by Act No. 7095, Jan. 20, 2004]
| Article 19 (Joint Penal Provisions) |
If a representative of a juristic person, or an agent, employee or other employed person of a juristic person or individual commits an offense falling under Article 18 (1) through (3) in connection with the affairs of such juristic person or individual, a fine as prescribed in the same paragraph of the same Article shall apply to such juristic person or individual, in addition to punishment of the offender. <Amended by Act No. 5621, Dec. 31, 1998; Act No. 7095, Jan. 20, 2004>
| Article 20 (Fine for Negligence) |
| (1) | A person who refuses, interferes with, or evades the investigation or collection by the relevant public official under Article 7 (1) shall be punished by a fine for negligence not exceeding twenty million won. |
| (2) | The fine for negligence referred to in paragraph (1) shall be imposed and collected by the Commissioner of the Korean Intellectual Property Office under the conditions prescribed by the Presidential Decree. |
| (3) | A person who is dissatisfied with the disposition of a fine for negligence referred to in paragraph (2) may raise an objection to the Commissioner of the Korean Intellectual Property Office within thirty days after receiving the notice of the disposition. |
| (4) | Where a person who is subject to the disposition of a fine for negligence referred to in paragraph (2) raises an objection under paragraph (3), the Commissioner of the Korean Intellectual Property Office shall forthwith notify the competent court, which shall, upon receiving the notification, bring the case of the fine for negligence to trial under the Non-Contentious Case Litigation Procedure Act. |
| (5) | If no objection is made and no fine for negligence is paid within the period referred to in paragraph (3), the fine shall be collected according to the example of disposition on the national taxes in arrears. |
[This Article Newly Inserted by Act No. 5621, Dec. 31, 1998]
ADDENDUM
This Act shall enter into force on January 1, 1987.
ADDENDA<Act No. 4478, Dec. 31, 1991>
| (1) | (Enforcement Date) This Act shall enter into force on such date as may be determined by the Presidential Decree within one year after the date of its promulgation. |
[This Act shall enter into force on December 15, 1992 under the Presidential Decree No. 13781, December 14, 1992]
| (2) | (Transitional Measures concerning Act, etc. of Infringing on Trade Secret prior to Enforcement of This Act) The amendments to Articles 10 through 12, and 18 (1) 3 shall not apply to any act of infringing on a trade secret, which has been committed before this Act enters into force. This provision shall also apply where any person who has obtained or used a trade secret before this Act enters into force uses such trade secret after this Act enters into force. |
ADDENDUM<Act No. 5454, Dec. 13, 1997>
This Act shall enter into force on January 1, 1998. (Proviso Omitted.)
ADDENDA<Act No. 5621, Dec. 31, 1998>
| (1) | (Enforcement Date) This Act shall enter into force on January 1, 1999. |
| (2) | (Transitional Measures concerning Penal Provisions) In the application of penal provisions to a violation of trade secrets which has been committed prior to the entry into force of this Act, the previous provisions shall apply. |
| (3) | (Transitional Measures concerning Extinctive Prescription) Notwithstanding the amendments to Article 14, with respect to the extinctive prescription of the right to file a claim for prohibition or prevention of a violation of trade secrets which has been committed prior to the entry into force of this Act, the previous provisions shall apply. |
ADDENDA<Act No. 5814, Feb. 5, 1999>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 1999.
Articles 2 through 5 Omitted.
ADDENDA<Act No. 6421, Feb. 3, 2001>
| (1) | (Enforcement Date) This Act shall enter into force on July 1, 2001. |
| (2) | (Special Cases concerning Application of Penal Provisions) With respect to the persons who have committed the unfair competitive acts under the amendments to subparagraph 1 (c) and (g) of Article 2, notwithstanding the provisions of Article 18 (3), the penal provisions under the same Article and paragraph shall not be applicable not later than December 31, 2001. |
ADDENDA<Act No. 7095, Jan. 20, 2004>
| (1) | (Enforcement Date) This Act shall enter into force six months after the date of its promulgation. |
| (2) | (Transitional Measures) Any person who has violated the previous provisions of Article 18 (1) and (2) prior to the enforcement of this Act shall be governed by the previous provisions. |
ADDENDA<Act No. 7289, Dec. 31, 2004>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 5 Omitted.
ENFORCEMENT DECREE OF THE UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT
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| ENFORCEMENT DECREE OF THE UNFAIR COMPETITION PREVENTION ACT | No.14062 | 19940101 |
| ENFORCEMENT DECREE OF THE UNFAIR COMPETITION PREVENTION ACT | No.13781 | 19921215 |
| ENFORCEMENT DECREE OF THE UNFAIR COMPETITION PREVENTION ACT | No.12203 | 19870701 |
| Article 1 (Purpose) |
The purpose of this Decree is to prescribe the matters delegated by the Unfair Competition Prevention and Trade Secret Protection Act and matters necessary for the enforcement thereof.
[This Article Wholly Amended on Aug. 18, 2009]
| Article 1-2 (Good Cause) |
"Without good cause prescribed by Presidential Decree, such as the purpose of noncommercial use" in subparagraph 1 (c) (iii) of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Act") means any of the following cases: <Amended on Sep. 27, 2023>
| 1. | Where a mark is used for non-commercial purposes; |
| 2. | Where a mark is used in a news report or commentary; |
| 3. | Deleted; <Jun. 27, 2023> |
| 4. | Where it is deemed that the use of another person's name, trade name, trademark, container or packaging of goods, or other mark indicating the goods or business of another person does not violate fair commercial practices. |
[This Article Wholly Amended on Aug. 18, 2009]
| Article 1-3 (Scope of and Procedures for Fact-Finding Surveys) |
| (1) | "A compelling reason not to do so as prescribed by Presidential Decree, such as the maintenance of corporate business or trade secrets" in the latter part of Article 2-4 (2) of the Act means any of the following cases: |
| 1. | Where it is deemed that legitimate interests of a corporation are likely to be seriously undermined if its business or trade secrets become known due to the submission of data; |
| 2. | Where the duty of confidentiality arises from statutes or regulations or from a contract. |
| (2) | The specific scope of data to be prepared for purposes of fact-finding surveys under Article 2-4 (1) of the Act (hereafter in this Article referred to as "fact-finding survey") shall be as follows: |
| 1. | Matters regarding the awareness of corporations about unfair competition practices and their business environment; |
| 2. | Matters regarding the status of holders of trade secrets and those regarding the acquisition, use, and management of such trade secrets; |
| 3. | Matters regarding disputes, such as types of unfair competition practices and infringement of trade secrets as well as remedies for damage; |
| 4. | Other matters deemed necessary by the Commissioner of the Korean Intellectual Property Office for formulating and implementing policies aimed at preventing unfair competition and protecting trade secrets. |
| (3) | Before conducting a fact-finding survey, the Commissioner of the Korean Intellectual Property Office shall determine the standards for selecting survey candidates, prepare a fact-finding survey plan which contains the purpose, details, period, etc. of the survey, and give a prior notice thereof to such candidates. |
| (4) | A fact-finding survey shall be conducted by means of either on-site survey or paper-based survey; and may be conducted using the information and communications network such as electronic mail where necessary. |
| (5) | The Commissioner of the Korean Intellectual Property Office may entrust research institutes or organizations, or experts related to the prevention of unfair competition and protection of trade secrets with specialized review or survey in the process of a fact-finding survey. |
[This Article Newly Inserted on Apr. 20, 2021]
[Previous Article 1-3 moved to Article 1-4 <Apr. 20, 2021>]
| Article 1-4 (Methods of Investigation into Acts of Unfair Competition) |
| (1) | Before entering business or manufacturing facilities to investigate relevant data, products, etc. or collecting and inspecting the least amount of products necessary for investigation under Article 7 (1) of the Act, the Commissioner of the Korean Intellectual Property Office; the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a |
| 1. | Requesting the submission of relevant data, products, etc. regarding parties, interested parties, or reference witnesses; |
| 2. | Requesting the attendance of parties, interested parties, or reference witnesses and hearing their advice and statement. |
| (2) | Where the Commissioner of the Korean Intellectual Property Office, the Mayor/ |
| (3) | Where an act subject to investigation or inspection under Article 7 (1) of the Act falls under any of the following cases, the Commissioner of the Korean Intellectual Property Office, the Mayor/ |
| 1. | Where the act clearly does not constitute an act of unfair competition, etc.; |
| 2. | Where it is difficult to pinpoint the subject matter of investigation or inspection due to lack of basic data or where it is impracticable to identify the grounds for said investigation or inspection; |
| 3. | Where a final and conclusive judgment is issued affirming that the act does not constitute an act of unfair competition, etc. |
| (4) | Where the mediation of a dispute referred to in Article 43 of the Invention Promotion Act is underway for the same case as the case subject to investigation, a person subject to investigation under Article 7 (1) of the Act may request the Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| (5) | In accordance with Article 7 (3) of the Act, the Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| (6) | Except as provided in paragraphs (1) through (5), details regarding the methods and procedures for investigation into an act of unfair competition, etc. and for suspension thereof shall be determined and publicly notified by the Commissioner of the Korean Intellectual Property Office. <Newly Inserted on Apr. 20, 2021> |
[This Article Wholly Amended on Sep. 18, 2018]
[Moved from Article 1-3; previous Article 1-4 moved to Article 1-5 <Apr. 20, 2021>]
| Article 1-5 (Disposal of Collected Goods) |
| (1) | Where the Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| (2) | The Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| (3) | Where an inspection under Article 7 (1) of the Act or ascertainment under Article 1-4 (1) 1 is completed, the Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| (4) | The certificate referred to in Article 7 (5) of the Act shall be as specified in attached Form 2. <Amended on Apr. 20, 2021> |
[This Article Newly Inserted on Sep. 18, 2018]
[Moved from Article 1-4 <Apr. 20, 2021>]
| Article 2 (Methods for Corrective Recommendation) |
| (1) | A corrective recommendation prescribed in Article 8 (1) of the Act shall be made in the form of a document that specifies the following: <Amended on Sep. 18, 2018; Apr. 20, 2021> |
| 1. | Grounds for corrective recommendation; |
| 2. | Details of corrective recommendation; |
| 3. | Deadline for correction; |
| (2) | The Commissioner of the Korean Intellectual Property Office, the Mayor/ |
| (3) | A public official who confirms the actual site under paragraph (2) shall carry a certificate indicating his or her authority and produce it to interested parties. |
[This Article Wholly Amended on Aug. 18, 2009]
| Article 2-2 (Methods and Procedures for Publication) |
| (1) | In accordance with Article 8 (2) of the Act, the Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| 1. | Name and address of an offender; |
| 2. | Details of the offense committed; |
| 3. | Deadline for correction; |
| 4. | Grounds for, and details of, the corrective recommendation. |
| (2) | Where the Commissioner of the Korean Intellectual Property Office, a Mayor/ |
| (3) | Except as provided in paragraphs (1) and (2), matters regarding the procedures for publication shall be determined and publicly notified by the Commissioner of the Korean Intellectual Property Office. |
[This Article Newly Inserted on Apr. 20, 2021]
| Article 3 (Procedures for Hearing Opinions) |
| (1) | If the Commissioner of the Korean Intellectual Property Office, the Mayor/ |
| (2) | The relevant party, interested person or witness of the corrective recommendation and publication or his or her agent, who has received the notice under paragraph (1), may go to the designated place at the designated date and time, and state opinions or submit written statements. <Amended on Apr. 20, 2021> |
| (3) | If the relevant party, interested person or witness of the corrective recommendation and publication or his or her agent has appeared and stated opinions pursuant to paragraph (2), the relevant public official shall prepare written gists and require those who have stated such opinions to verify, sign or seal the details thereof. <Amended on Apr. 20, 2021> |
| (4) | The written notice as prescribed in paragraph (1) shall clarify that, if a person does not comply with the details of the notification without justifiable grounds, he or she shall be deemed to have renounced the opportunity to state his or her opinions. |
[This Article Wholly Amended on Aug. 18, 2009]
| Article 3-2 (Criteria for Designation of Original Document Certification Agency) |
The requirements for professional manpower and facilities that a person who intends to be designated as an original document certification agency shall fulfill under Article 9-3 (2) of the Act shall be as follows: <Amended on Dec. 30, 2016>
| 1. | Professional manpower: The agency shall have at least two persons in charge of the operation of facilities necessary for performing the duties of certifying electronic documents containing trade secrets as the original by using electronic fingerprints (hereinafter referred to as "duties of certifying original documents"), who shall meet all the following requirements: |
| (a) | Each of them shall have national technical qualifications equivalent to or higher than those of the information communication engineer, information processing engineer, or computer system application engineer under the National Technical Qualifications Act; |
| (b) | Each of them shall have served in the field of information technology or communications under the National Technical Qualifications Act for at least two years; |
| 2. | Facilities: The agency shall be equipped with the facilities necessary for performing the duties of certifying original documents, which meet the criteria prescribed and publicly notified by the Commissioner of the Korean Intellectual Property Office with respect to the following matters: |
| (a) | Matters concerning the safekeeping, transmitting, and receiving of information related to the duties of certifying original documents; |
| (b) | Matters concerning the securities of network and system; |
| (c) | Matters concerning the prevention system against disasters, including fire and flood damage; |
| (d) | Other matters necessary for the operation and management of the duties of certifying original documents, including facilities related to the system for performing the duties of certifying original documents. |
[This Article Newly Inserted on Jan. 28, 2014]
| Article 3-3 (Procedures for Designation of Original Document Certification Agency) |
| (1) | A person who intends to be designated as an agency that performs the duties of certifying original documents under Article 9-3 (2) of the Act (hereinafter referred to as "original document certification agency") shall file with the Commissioner of the Korean Intellectual Property Office an application for designation of an original document certification agency in attached Form 3 (including applications in the form of electronic documents; hereinafter referred to as "application for designation"), along with the following documents (including electronic documents): |
| 1. | Business plan; |
| 2. | Documents verifying that the applicant is equipped with professional manpower and facilities under the subparagraphs of Article 3-2; |
| 3. | Articles of a corporation or articles of the organization (applicable only to cases where the applicant is a corporation or an organization). |
| (2) | Upon receipt of an application for designation under paragraph (1), the Commissioner of the Korean Intellectual Property Office shall verify the corporation registration certificate (applicable only to cases where the applicant is a corporation) and the business registration certificate of the applicant through the shared use of administrative information under Article 36 (1) of the Electronic Government Act: |
| (3) | Upon receipt of an application for designation under paragraph (1), where the application for designation is deemed to fulfill the criteria for designation under Article 3-2, the Commissioner of the Korean Intellectual Property Office shall designate the applicant as an original document certification agency and shall issue the written designation of an original document certification agency in attached Form 4. |
| (4) | If necessary for the designation under paragraph (3), the Commissioner of the Korean Intellectual Property Office may require a person who has submitted an application for designation to submit data or may hear the opinions of the person or the related experts. |
| (5) | Upon designating a person as an original document certification agency, the Commissioner of the Korean Intellectual Property Office shall post such designation on the website of the Korean Intellectual Property Office without delay. |
[This Article Newly Inserted on Jan. 28, 2014]
| Article 3-4 (Measures to Secure Safety and Reliability of Original Document Certification Agency) |
Matters to be complied with by an original document certification agency under Article 9-3 (4) of the Act shall be as specified in attached Table 1.
[This Article Newly Inserted on Jan. 28, 2014]
| Article 3-5 (Criteria for Administrative Dispositions against Original Document Certification Agency) |
| (1) | The criteria for the administrative dispositions against an original document certification agency under Article 9-4 (3) of the Act shall be as specified in attached Table 2. |
| (2) | Upon revoking the designation of an original document certification agency or ordering the suspension of all or part of the duties of certifying original documents under Article 9-4 (3) of the Act, the Commissioner of the Korean Intellectual Property Office shall publicly notify the following matters: |
| 1. | Name and address of the original document certification agency (referring to the name of its representative and the location of its main office, in cases where the original document certification agency is a corporation or an organization); |
| 2. | Details of the disposition. |
[This Article Newly Inserted on Jan. 28, 2014]
| Article 3-6 (Handover and Takeover of Original Document Certification Agency Whose Designation Is Revoked) |
| (1) | An original document certification agency whose designation has been revoked under the main clause, with the exception of the subparagraphs, of Article 9-4 (3) of the Act shall submit the following documents (including electronic documents) to the Commissioner of the Korean Intellectual Property Office: |
| 1. | Original copy of the written designation of the original document certification agency; |
| 2. | One copy of the contract for handover and takeover of the records related to the duties of certifying original documents under the main clause of Article 9-4 (4) of the Act. |
| (2) | Where it is impossible to hand over the records related to the duties of certifying original documents under the proviso to Article 9-4 (4) of the Act, a written report on impossibility of handing over the duties of an original document certification agency in attached Form 5, along with the following documents, shall be submitted to the Commissioner of the Korean Intellectual Property Office. In such cases, the Commissioner of the Korean Intellectual Property Office shall keep such records until the records related to the duties of certifying original documents are handed over to another original document certification agency: |
| 1. | A copy of written reasons for impossibility of the handover; |
| 2. | Each copy of the records related to the duties of certifying original documents and the list thereof. |
[This Article Newly Inserted on Jan. 28, 2014]
| Article 3-7 (Imposition and Payment of Penalty Surcharges) |
| (1) | The criteria for imposing penalty surcharges in terms of the types, gravity, etc. of violations of an original document certification agency under Article 9-5 (1) of the Act shall be as specified in attached Table 3. |
| (2) | Where the Commissioner of the Korean Intellectual Property Office intends to impose a penalty surcharge under Article 9-5 (1) of the Act, he or she shall give a written notice to make payment thereof, specifying the type of violation and the amount of the penalty surcharge. |
| (3) | A person who receives a notice under paragraph (2) shall pay the relevant penalty surcharge within 20 days from the receipt of the notice to the collecting agency specified by the Commissioner of the Korean Intellectual Property Office. <Amended on Dec. 12, 2023> |
| (4) | A collecting agency that has received a penalty surcharge under paragraph (3) shall issue a receipt to the payer and shall notify such fact to the Commissioner of the Korean Intellectual Property Office without delay. |
[This Article Newly Inserted on Jan. 28, 2014]
| Article 3-8 (Standards for Payment of Monetary Rewards for Reports) |
| (1) | Monetary rewards for reports receivable under Article 16 (1) of the Act (hereinafter referred to as "monetary reward for a report") shall not exceed 10 million won per year per person. |
| (2) | A person who intends to receive a monetary reward for a report shall file an application therefor with the Commissioner of the Korean Intellectual Property Office. |
| (3) | Upon receipt of an application under paragraph (2), the Commissioner of the Korean Intellectual Property Office shall verify the details thereof, make decisions on whether to pay a monetary reward for the report and the amount to be paid, and notify his or her decision to the applicant within 15 days from the date of such decision. |
| (4) | In determining the amount of the monetary reward for a report, the Commissioner of the Korean Intellectual Property Office may take following matters into account: |
| 1. | Whether the relevant report has become a ground for the investigation by an investigation agency; |
| 2. | Profit acquired by a person who has conducted an act of unfair competition referred to in subparagraph 1 (a) of Article 2 of the Act and the gravity of damage suffered therefrom; |
| 3. | Results of the tasks performed by an investigation agency concerning the violation related to the relevant report. |
| (5) | Matters necessary for the payment of monetary rewards for reports, such as the detailed standards for monetary rewards for reports and the methods and procedures for payment thereof, other than those prescribed in paragraphs (1) through (4), shall be prescribed by the Commissioner of the Korean Intellectual Property Office. |
[This Article Newly Inserted on Jan. 28, 2014]
| Article 4 (Entrustment of Duties) |
| (1) | Deleted. <Sep. 22, 2011> |
| (2) | Deleted. <Sep. 22, 2011> |
| (3) | "Corporation or organization related to the duties of protection of industrial property rights or prevention of unfair competition prescribed by Presidential Decree" in Article 17 (2) of the Act means the following corporations or organizations: <Amended on Sep. 22, 2011; Apr. 20, 2021> |
| 1. | The Korea Invention Promotion Association established under the Invention Promotion Act; |
| 2. | A corporation or organization designated and publicly notified by the Commissioner of the Korean Intellectual Property Office from among those acknowledged as having expertise in the affairs referred to in Article 2-5 of the Act. |
| (4) | Article 2 (2) and (3) shall apply |
| (5) | A corporation or organization that intends to receive a subsidy to cover expenses under Article 17 (5) of the Act shall file with the Commissioner of the Korean Intellectual Property Office an application for a subsidy to cover the expense incurred in performing the duties of unfair competition prevention and trade secret protection in attached Form 6, along with the following documents. In such cases, the Commissioner of the Korean Intellectual Property Office shall verify the corporation registration certificate (applicable only to a corporation) through the shared use of administrative information under Article 36 (1) of the Electronic Government Act: <Amended on May 4, 2010; Sep. 22, 2011; Jan. 28, 2014> |
| 1. | Work plan for unfair competition prevention and trade secret protection; |
| 2. | Articles of incorporation (applicable only to a corporation). |
| (6) | The Commissioner of the Korean Intellectual Property Office shall determine and publicly notify the standards and procedures for designation of a corporation or organization provided in paragraph (3) 2. <Amended on Sep. 22, 2011> |
[This Article Wholly Amended on Aug. 18, 2009]
[Title Amended on Sep. 22, 2011]
| Article 4-2 (Procedures for Administering Common Affairs) |
The Commissioner of the Korean Intellectual Property Office shall determine and publicly notify the details which are necessary for the procedures for administering the affairs provided in Articles 7 through 9 and 20 of the Act and the guidance, etc. on such affairs.
[This Article Newly Inserted on Sep. 22, 2011]
| Article 5 (Education) |
The Commissioner of the Korean Intellectual Property Office may, where deemed necessary, provide education on duties to public officials engaged in unfair competition prevention.
[This Article Wholly Amended on Aug. 18, 2009]
| Article 5-2 (Re-Examination of Regulation) |
The Commissioner of the Korean Intellectual Property Office shall examine the appropriateness of the following matters every five years, counting from the relevant base date specified in the following (referring to the period that ends on the day before the base date of every fifth year) and shall take measures, such as making improvements:
| 1. | Criteria for the designation of an original document certification agency under Article 3-2: January 1, 2021; |
| 2. | Matters to be observed by an original document certification agency under Article 3-4 and attached Table 1: January 1, 2021; |
[This Article Wholly Amended on Apr. 20, 2021]
| Article 6 (Criteria for Imposing Administrative Fines) |
The criteria for imposing administrative fines under Article 20 (1) of the Act shall be as specified in attached Table 4. <Amended on Jan. 28, 2014>
[This Article Wholly Amended on Aug. 18, 2009]
ADDENDUM <Presidential Decree No. 16065, Dec. 31, 1998>
This Decree shall enter into force on January 1, 1999.
ADDENDUM <Presidential Decree No. 17255, Jun. 27, 2001>
This Decree shall enter into force on July 1, 2001.
ADDENDA <Presidential Decree No. 21691, Aug. 18, 2009>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Article 2 (Transitional Measures)
| (1) | Standards for imposing administrative fines with respect to any offense committed before this Decree enters into force shall be governed by the previous provisions. |
| (2) | Where standards for imposing administrative fines per frequency of offense are applied pursuant to the amended provisions in attached Table, the first offense committed after this Decree enters into force shall be deemed one offense. |
ADDENDA <Presidential Decree No. 22151, May 4, 2010>
Article 1 (Enforcement Date)
This Decree shall enter into force on May 5, 2010.
Articles 2 through 4 Omitted.
ADDENDUM <Presidential Decree No. 23153, Sep. 22, 2011>
This Decree shall enter into force on October 1, 2011.
ADDENDUM <Presidential Decree No. 25050, Dec. 30, 2013>
This Decree shall enter into force on January 1, 2014. (Proviso Omitted.)
ADDENDUM <Presidential Decree No. 25121, Jan. 28, 2014>
This Decree shall enter into force on January 31, 2014.
ADDENDA <Presidential Decree No. 25840, Dec. 9, 2014>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2015.
Articles 2 through 7 Omitted.
ADDENDUM <Presidential Decree No. 26774, Dec. 30, 2015>
This Decree shall enter into force on the date of its promulgation. (Proviso Omitted.)
ADDENDA <Presidential Decree No. 27751, Dec. 30, 2016>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2017. (Proviso Omitted.)
Articles 2 through 12 Omitted.
ADDENDA <Presidential Decree No. 29176, Sep. 18, 2018>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Article 2 (Applicability to Disposal of Collected Goods)
The amended provisions of Article 1-4 (2) and (3) shall also apply where products have been collected and are under inspection under Article 7 (1) of the Act as at the time this Decree enters into force or where a request for submission of products has been made with regard to acts of unfair competition, etc. and inspection is underway in response to such request.
Article 3 (Transitional Measures concerning Certificates)
A certificate issued under the previous attached Form 2 before this Decree enters into force may also be used concurrently with a certificate issued under the amended provisions of attached Form 2, for one month after this Decree enters into force.
ADDENDUM <Presidential Decree No. 29421, Dec. 24, 2018>
This Decree shall enter into force on January 1, 2019.
ADDENDUM <Presidential Decree No. 30509, Mar. 3, 2020>
This Decree shall enter into force on the date of its promulgation.
ADDENDUM <Presidential Decree No. 31632, Apr. 20, 2021>
This Decree shall enter into force on April 21, 2021.
ADDENDUM <Presidential Decree No. 33773, Sep. 27, 2023>
This Decree shall enter into force on September 29, 2023.
ADDENDUM <Presidential Decree No. 33913, Dec. 12, 2023>
This Decree shall enter into force on the date of its promulgation.