Jinsol International, Patent & Law Offices

	1. Overview Currently, the Design Protection System in the Republic of Korea is in transition from Substantial Examination System(SES) to Non-Substantial Examination System(NSES). Under the NSES, applicants may get the registration within 2 or 3 months from the filing date and enjoy new procedures such as Multiple Application, and Post-Grant Opposition for their conveniency. Even though the applications under the NSES are not examined substantially, the requirements for the registration and the effects of rights are same with those of under the SES. The registrations under the NSES which do not fulfill the requirements will be invalidated through the Post-Grant Opposition or Trial. Currently, the products applied to the NSES are few. However, KIPO will gradually extend the scope of the products which are applied to the NSES, if this trial is successful.

	2. Substantial Examination System (1) Filing an Application (a) Documents required (i) an application stating the name and address of the creator and the applicant , the date of submission, the name of the article on which the design is embodied, the claim and the priority data (if the right of priority is claimed); (ii) drawings of the design; (iii) if the right of priority is claimed, the priority document which is a certified copy of the priority application together with its Korean translation; and (iv) a power of attorney, if necessary. (b) Claim of Priority The right of priority may be claimed for a design application under the Paris Convention or based on a bilateral agreement or reciprocity. A claim of priority in a design application can be made only if the design application is filed in the Republic of Korea within 6 months from the claimed priority date. (c) Drawings Drawings appended to a design application should contain: (i) the name of the article embodying the design; and (ii) a description of the design and the gist of the design. Drawings should contain a prospective view, a front view, a rear view, a right side view, a left side view, a top view, a bottom view and other views. (2) Formality Examination Once a design application is submitted to KIPO, it will be checked to ensure that all requirements necessary to accord the application a filing date have been satisfied. (3) Early Publication per Request A design application may, upon the request of the applicant, be published in the official gazette entitled "Design Laid-open Gazette". Such request for publication may not be made once the applicant has received a copy of the first final decision of approval or rejection of application. Once a design application has been laid-open to public inspection, any person may submit to KIPO information relevant to the registrablility of the design concerned together with any supporting evidence. (4) Substantial Examination (a) Initiation of Examination Unlike a patent or utility model application, a request for examination of a design application is not required for the initiation of substantial examination. Design applications are automatically taken up for examination in the order of the filing date thereof. A request for expedited examination may be made once the design application has been laid-open upon to public inspection the request of the applicant and upon showing that it is presently being infringed. (b) Requirement for Registration (i) It should fall under the definition of a design given in the Design Act. (ii) Industrial applicability, (iii) Novelty, (iv) Creativity, (v) Furthermore, it should not be any of the unregistrable designs provided in Article 6 of the Design Act, such as designs which disturb the public order or good morals and a design which is identical with or similar to the flag, emblem of nation or public organizations. (5) Rejection and Registration If a design application falls under any of the grounds for rejection enumerated in the Design Act, the Examiner must issue a notice of preliminary rejection, stating the reasons for rejection, and give the applicant an opportunity to submit a written opinion, within the specified time limit. If the examiner finds no ground for rejection or he is persuaded by the applicant's argument and/or amendment, he will render a decision to grant registration. (6) Appeal and Trial Appeal and Trial procedure are same with those of patent and trademark.

	3. Non Substantial Examination System (1) Multiple Application Under the NSES, an applicant may file an application for twenty designs or less which fall under single class in accordance with the Korean Classification of Products for the Registration of Designs. The documents required, such as claim of priority, drawings for the design application under the NSES is same as that of under the Substantial Examination. (2) Formality Examination and Registration Under the NSES, examiners conduct formality check and examination to determine whether the design will disturb the public order or good morals only. The formality check on the design application under the NSES is same as that of under the SES. If the examiner founds a flaw in the formality mentioned above, the examiner must issue a notice of preliminary rejection stating the reason for rejection and give the applicant an opportunity, time limit to submit a written opinion or amendment within the specified. If the examiner finds no flaw in the formality examination, he will render a decision to grant registration without substantial examination. (3) Publication and Post-grant Opposition KIPO publishes a "design registration gazette under the NSES" after the design applicant pay the registration fee. Once a design has been published in the Registration Gazette any person may file an opposition against the registration of the design under the NSES within 3 months from the publication date. The ground of opposition are same as that of requirement of registration under the NSES; novelty, creativity, industrial applicability, and other unregistrable designs. (4) Rights conferred to the design registration under the NSES The rights conferred to the design registration under the NSES in exclusive right are same as that of under SES. If the registration under the NSES is invalidated by opposition or trial, the right conferred to the registration under the NSES will retroactively lose effect.