A Study on Intellectual Property Law for Strategic Legal Protection of Designs

Since design has a growing impact on the success or failure of the economy and companies worldwide, and has become a key part of the public and consumers, it is essential to consider not only its utility and functional factors but also its appearance and decorative design in order to be competitive. In the age of innovative new technologies, product development and technological progress are growing at a faster pace, so it is no exaggeration to say that “design is the only thing that differentiates one product from another” in modern consumer culture. According to the Korea Institute of Design Promotion’s “2020 Korea Design Statistical Data”, the economic value of design in 2019 was estimated at 128 trillion KRW, but the value of design will be further increased thanks to future technology development. In addition, if entrepreneurs, designers, etc. do not protect investment in innovation, the lack of legal protection of designs, may pose a risk of loss and failing to properly recover investments. For this reason, it is necessary to consider how intellectual property laws can be used to protect the strategic protection of designs. In the existing intellectual property law systems, there are three types of design protection laws, copyright laws, and trademark laws in relation to design (product design, brand design, technology design, etc.). Therefore, in the case of design, various types of protection can be obtained under the Intellectual Property Law. For example, in the case of creative design, copyrights arises without registration, and design rights can be registered if they are developed as products and meet the requirements of industrial availability, novelty, and creativity under the Design Protection Act. Of course, most designs created by individuals will be sufficient under copyright law, but product design and industrial design need to be registered with the Korean Intellectual Property Office as design rights to clarify legal rights. In addition, a right arises only if the requirements for creativity are met, but if it is also registered as a design right, it has the advantage that the burden of proof is switched even in a copyright dispute. Furthermore, if it reaches a level of fame and prominence, it can be registered as a trademark and protected. Considering that the protection period under the Design Protection Act is 20 years, it can also be useful to register as a design right in the initial stages of design development, and to register as a semi-permanent monopoly trademark rights by renewal every 10 years. However, if such overlapping intellectual property law protection arises for a design, there may be concerns about the existence of a monopoly under another type of law when the protection period under a particular type of law expires. For example, if design rights were protected by a three-dimensional shape mark or trade dress at the expiration of the design rights protection period, competitors’ use of the design would violate the trade dress law. Indeed, this overlapping legal protection of the design occurs simultaneously or sequentially. Indeed, intellectual property rights holders can use all three different types of separate intellectual property laws to legally protect the design if the design is distinctive. That is, in the early stages of development of creative design, legal protection by copyright or design rights, and after that, secondary meaning as distinctiveness and source indicator of goods can be registered as trademarks and acquired semi-permanently. Consequently, there is no doubt that overlapping intellectual property law protections exist for designs. The use of overlapping intellectual property rights protection for such high value-added designs would provide design developers with a more strategic legal protection basis that would be useful in securing remedies under the Intellectual Property Law.