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EU-Korea: IP rights protection through the EU-Korea Free Trade Agreement (FTA)

The protection and enforcement of intellectual property rights are critical to European competitiveness. The EU-Korea Free Trade Agreement (FTA) contains a separate chapter on intellectual property with provisions on copyrights, trademarks, geographical indications, designs, and patents. This chapter also includes an extensive section on IPR enforcement.


Overview:


1. Copyrights


Under the FTA, the term of copyright protection should generally not fall below the life of the author and should not continue for 70 years thereafter.


Rights holders are also to receive appropriate remuneration for the use of their music or other artistic works more easily than before.


Also covered is legal protection for technical processes used to protect copyrights - the FTA provides legal protection against circumvention of effective technical measures.


2. Trademarks


The FTA provides that the EU and Korea will each provide a trademark registration system whereby the grounds for refusal of a trademark registration will be communicated in writing and may be transmitted electronically to the applicant; the applicant will be given the opportunity to appeal the refusal and to challenge a final refusal in court. The EU and Korea also create the possibility for interested parties to file oppositions against trademark applications.


3. Geographical indications


A separate annex to the FTA lists the geographical indications protected by the agreement in each of the EU and Korea. The scope of protection covers agricultural products including foodstuffs and wines including aromatized wines and spirits.


These geographical indications are protected against:


(a) the use of any means in the name or presentation of a product that indicates or suggests, in a manner that misleads the public as to the geographical origin of the product, that the product in question originates in a geographical area other than the true place of origin,


(b) the use of a geographical indication that identifies a good with a similar good that does not originate in the place indicated in the geographical indication in question, even if the true origin of the goods is indicated, or the geographical indication is used as a translation or transcription, or accompanied by expressions such as "kind", "type", "style", "imitation" or the like; or


(c) any other use that constitutes an unfair act of competition.


Austria has protected the following indications:


Tiroler Speck Schinken

Steirischer Kren

Jägertee/Jagertee/Jagatee

Inländerrum

Korn/Kornbrand


Under the FTA, a party's trademark that was applied for, registered, or established through use prior to the application for protection of the geographical indication may be used notwithstanding the protection of the geographical indication. However, if a trademark is applied for after a geographical indication for similar goods has already been applied for, the registration shall be refused or cancelled.


4. Designs and models (registered designs)


Designs have recently become an economically important intellectual property right. According to the FTA, the term of protection of registered designs shall be at least 15 years. Unregistered appearances are now also protected to the extent that the challenged use is based on imitating the unregistered appearance of the corresponding product. Such use is to extend to the display, importation or exportation of goods. The term of protection for the unregistered exterior shall be at least 3 years.


5. Patents


Special provisions for medicinal and plant protection products


The FTA provides for the extension of the term of protection at the request of the patent holder, in order to compensate the patent holder for the reduction of the effective term of protection in the event of an official approval or registration procedure before being placed on their markets. The extension of the term of protection may not exceed 5 years.


In addition, there are special provisions for the protection of data submitted with an application for marketing authorization for medicinal products or plant protection products.


6. Enforcement of Intellectual Property Rights


On the one hand, the FTA provides for civil actions to protect right holders (e.g., provisional and protective measures, rights to information, remedial and injunctive measures, damages).


In the area of criminal law, each party to the FTA must provide for criminal procedures and penalties that apply at least in cases of intentional counterfeiting of trademarked goods and intentional unauthorized manufacture of goods protected by a copyright or related right on a commercial scale. The imitation of geographical indications and of designs and models is also relevant under criminal law. Measures such as seizure or confiscation are available.


A special provision exists regarding the liability of online service providers.


The FTA also provides for special border measures to protect intellectual property rights. A right holder who has reasonable grounds to suspect that the import, export, re-export, entry into customs transit, transhipment, entry into a free zone, entry into a customs suspensive procedure, or entry into a duty-free warehouse of goods infringes an intellectual property right may apply in writing to the judicial or administrative authorities for the customs authorities to suspend the release of such goods or to detain the goods. If the customs authorities have legitimate reasons in the course of their activities and prior to a right holder's request to that effect, they may suspend the clearance of the goods or seize the goods so that the right holder can file a request to that effect.


Attorney for IP Law & FTA


Attorney Dr. Simon Harald Baier LL.M. assists you in intellectual property law, especially in connection with the EU-Korea Free Trade Agreement.



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