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October 2023
October 2023Adoption of “Letter of Consent” System in Korea
Korea revised the Trademark Act to adopt the letter of consent system. Under the current Trademark Act, a trademark (junior mark) similar to a third party’s prior mark (senior mark) cannot be registered for goods similar to the goods of a senior mark. However, according to the revised Trademark Act, which was passed by the National Assembly on October 6, 2023, a junior mark can be registered in spite of a senior mark similar to the junior mark when accompanied by a letter of consent provided by the owner of the senior mark. Meanwhile, a junior mark that is the same as the senior mark in terms of mark and goods cannot be registered regardless of a letter of consent.
In particular, it is worth noting that the effect of the letter of consent system will be felt much sooner since the system will apply even to the trademark applications that have been filed under the current law yet are still pending. As is customary, the revised law passed in October 2023 is expected to be promulgated approximately one month later in November 2023 and to be effective six months later in May 2024.
If a Korean trademark application of your client has been rejected due to a similar senior mark, you may advise your client to try to delay the examination in order to overcome the senior mark by using the letter of consent system as follows:
- Applying for a one-month extension of deadline 4 times after the 2 month response period; and
- Filing a letter of consent provided by the owner of the senior mark
In case of International Registration via Madrid Protocol, extension of deadline is allowed only twice. In this regard, your client may file a separate response in order to try to delay the examination and then submit a letter of consent through the procedure of information provision.
On the other hand, the letter of consent system will not apply to the same mark for the same goods/services. In this regard, it will be set forth in the Examination Guideline in the future what the scope of the same trademark is and what the scope of the same goods/services is. We anticipate that the new Examination Guideline based on the revised law will be prepared in March or April 2024, one or two months before the effective date of the revised law.
HANYANG International Patent and Law Firm will continue to provide you with the exact date the Letter of Consent System becomes effective and details of the examination guidelines through further newsletters. Should you have any questions regarding the letter of consent system in Korea, please do not hesitate to contact us.
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