Amendments to the Trademark
Act, Design Protection Act, and Unfair Competition Prevention and Trade Secret
Protection Act, which provide compensation for damages for infringing goods
sold over the rights holder's production capacity, passed the National Assembly
on December 1, 2020. It is expected to
be enacted in June 2021.
Currently, if the scale of
infringement exceeds the right holder’s production capacity, the amount of
damages is determined within the range of the production capacity. Under the amended laws, the scope of damages
compensation will also include the sale of products that exceed the right
holder’s production capacity, the amount being equivalent to the reasonable license
fee. In other words,
Current
compensation amount = (right holder's production capacity – actual sales
quantity) × right holder’s profit per unit
Compensation
for damages under the new rule = [(right holder’s production capacity – actual
sales quantity) × right holder’s profit per unit] + [(total sales quantity of
infringer – quantity not sold by right holder due to
infringement) × reasonable royalty rate per unit]
Amendments
to the Patent Act with such content passed the National Assembly on May 20,
2020, and went into effect on December 10, 2020 (see IP News on the homepage of
Myung-Shin & Partners dated June 25, 2020).
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