A
trademark right holder or a design right holder may claim compensation for
damages against a person who intentionally or negligently infringes his or her
trademark right or design right if the right holder can prove the damages he or
she has suffered due to the infringement.
In
this regard, amendments to the Trademark Act and the Design Protection Act
became effective on October 20, 2020, in order to allow the right holder to
claim compensation up to three times the amount of actual damages against an
"intentional" infringer. (The so-called treble damages system had already
been introduced in the Patent Act and the Unfair Competition Prevention and
Trade Secret Protection Act which became effective on July 9, 2019.)
There
may be occasions where it is practically challenging to prove the amount of
damages. The Trademark Act allows the
right holder to claim, instead of actual damages, an amount as damages within
the scope stipulated in the Act. To this
end, the intentional or negligent infringer must have used a mark identical or
substantially identical to the registered trademark for a product that is
identical or substantially identical to the designated goods. (This is called a
"statutory damages compensation system" differentiated from a general
compensation system.)
In
the above amendments to the Trademark Act, the maximum amount of statutory
damages has been increased to 100 million KRW (300 million KRW in case of
intentional infringement).
Damage
claims under the amended Trademark Act and Design Protection Act may be made
against infringements that have occurred after October 20, 2020.
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