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Legal Amendments to Further Enhance Protection for Utility Models


Recently, the Korean National Assembly passed an amendment to the Korean Utility Model Act ("Amendment") that gives authority to the Police to investigate and refer utility model infringers to the Prosecutors Office for criminal indictment even where the IP right holder has not filed a complaint. This is expected to enhance protection of utility model rights in Korea going forward.

Until now, a utility model right holder has been required to file a complaint in order to initiate an investigation into infringement. A party found guilty of criminal infringement of a utility model can be sentenced to up to seven years imprisonment or a fine of up to KRW 100 million (approx. USD 81,000). However, the authorities have only initiated criminal investigations of infringement if the complaint was filed within six months of the right holder becoming aware of the infringement, since criminal penalties cannot be sought if the complaint is filed later than that point. As such, it is likely some instances of infringement have not been punished due to the belated filing or absence of a criminal complaint from a utility model right holder under the previous law.

The Amendment allows the Police to initiate investigations of infringement without the filing of a complaint, just as with trademark and counterfeiting cases. As such, the six-month complaint deadline no longer applies, since the Police have the authority to initiate an investigation on their own accord, regardless of when a complaint is filed (or even if a complaint is never filed). However, the Amendment does not take away all control of such investigations from the right holder, as the right holder can request that an investigation into infringement initiated by the Police be terminated.

As a practical matter, given the potential difficulties in recognizing and confirming utility model infringement, it is not clear whether the Police will actually initiate many utility model infringement investigations on their own. However, regardless, the Amendment should further enhance protection of the rights of IP holders, since the Police can theoretically initiate a criminal investigation of infringement at any time, and based on information from a third party other than the IP holder.

The Amendment will apply to utility model infringement that occurs on or after June 10, 2022.