Practice Areas

Border Measures

Border measures are a system introduced to block the cross-border distribution of goods that infringe intellectual property rights, and they are a key means of protecting a company's technology and brand in the international trade environment.

CONTENTS

1. Border Measures | A Key Means of Protecting Intellectual Property Rights
- - Major Types of Disputes
2. Border Measures | Unfair Trade Practice Investigation System
- - Subjects of Korea Trade Commission Investigation
3. Border Measures | Customs Suspension of Clearance System
- - Suspension of Clearance Application Procedure
- - Customs Investigation on Its Own Authority
4. Border Measures | Right Holder Response Strategies
- - Response Measures for Import and Export Companies
5. Border Measures | The Starting Point of Corporate IP Protection

1. Border Measures | A Key Means of Protecting Intellectual Property Rights

Border measures refer to the legal measures a state takes at the border stage to block the import and export of goods that infringe intellectual property rights.

As the international distribution of counterfeit and pirated goods increases with the expansion of FTAs and changes in global supply chains, the importance of protecting intellectual property rights at the border stage has also risen significantly.

In particular, since the conclusion of the WTO TRIPS Agreement and various FTAs, countries have been expanding their authority over customs clearance control and investigation at the border stage in order to strengthen the protection of intellectual property rights.

In Korea, the import and export of goods that infringe intellectual property rights is regulated mainly under the Customs Act and the Act on the Investigation of Unfair International Trade Practices and Remedy against Injury to Industry.

Through this, customs authorities may suspend or detain the clearance of goods suspected of infringement, and the Trade Commission may investigate whether unfair trade practices have occurred and take measures such as corrective orders and the imposition of penalty surcharges.

Major Types of Disputes

In practice, the following disputes frequently arise.

Import cases involving counterfeit trademark goods
Parallel imports and trademark infringement disputes
Import cases involving design-imitation products
Customs clearance disputes over patent-infringing products
Import disputes over products sold on online platforms

Recently, as the international distribution of counterfeit goods through e-commerce platforms increases, border measure cases are also rapidly growing.

How to determine whether international intellectual property rights are violated

2. Border Measures | Unfair Trade Practice Investigation System

One of the principal instruments of border measures is the unfair trade practice investigation system administered by the Korea Trade Commission.

The unfair trade practice investigation system is a mechanism for investigating cases in which goods that infringe intellectual property rights are imported or exported, halting such conduct, and remedying the resulting harm.

A right holder may file an application for investigation with the Korea Trade Commission based on the fact of infringement, and the scope of investigation includes the following intellectual property rights.

Patent rights
Utility model rights
Trademark rights
Design rights
Copyright
Trade secrets

Once an application for investigation is received, the Korea Trade Commission determines whether to open an investigation and verifies whether infringement has occurred through documentary review, on-site inspection, and expert appraisal.

Subjects of Korea Trade Commission Investigation

Representative cases subject to an unfair trade practice investigation include the following.

Import or export of goods that infringe intellectual property rights
Sale or distribution of infringing goods
Import of products manufactured by infringing trade secrets
International trade in products that imitate designs and trademarks

If the investigation finds that infringement has occurred, the Korea Trade Commission may take the following measures.

Order to suspend import and sale
Order to destroy infringing goods
Corrective order
Imposition of a penalty surcharge

3. Border Measures | Customs Suspension of Clearance System

Another important border measure for protecting intellectual property rights is the customs suspension of clearance system.

Under the Customs Act, when goods declared for import or export may infringe intellectual property rights, customs may suspend the clearance of such goods for a certain period.

A right holder may apply to customs for suspension of clearance with respect to goods that may infringe the holder's patent rights, trademark rights, design rights, copyright, and the like, and through this can block infringing goods from entering the domestic distribution network in advance.

Suspension of Clearance Application Procedure

The main documents a right holder must submit to apply for suspension of clearance are as follows.

Intellectual property registration information and right holder information
Description of the suspected infringing goods and a method for identifying them
Comparative materials regarding infringement
Information related to the importer or supplier

Customs reviews the submitted materials to determine whether to suspend clearance and may, if necessary, request the right holder to submit additional materials.

Customs Investigation on Its Own Authority

Even without an application from a right holder, customs may suspend the clearance of suspected infringing goods on its own authority.

In particular, where the following circumstances exist, customs may restrict clearance through an investigation conducted on its own authority.

Where a court judgment on infringement exists
Where an appraisal result from a specialized institution such as the Korea Copyright Commission exists
Where the possibility of infringement is clear during the customs investigation

Measures of this kind play an important role in blocking the domestic distribution of counterfeit and imitation goods at the source.

Overseas patent application method and PCT procedure

4. Border Measures | Right Holder Response Strategies

Intellectual property right holders can actively use border measures to block the international distribution of infringing goods.

In particular, where the customs suspension of clearance system and the Korea Trade Commission investigation system are used in parallel, more effective protection of rights is possible.

A right holder can use border measures through the following strategies.

· Registration of intellectual property rights with customs and advance provision of information

· Securing information on suspected infringing importers and distribution networks

· Filing for suspension of clearance when infringing goods are found

· Filing an application for an unfair trade practice investigation with the Korea Trade Commission

Through these measures, the domestic distribution of infringing goods can be blocked, and the matter may lead to follow-up legal procedures such as a claim for damages or a criminal complaint.

Response Measures for Import and Export Companies

For import and export companies, it is important to verify in advance whether the products they handle infringe the intellectual property rights of others.

In particular, for products manufactured and distributed through global supply chains, infringement issues may arise because the rights relationships differ by country even for the same product.

Where customs determines goods to be suspected infringing goods and suspends their clearance, the importer or exporter needs to respond as follows.

Submitting materials proving that there is no infringement
Proving a genuine-goods distribution agreement or a license agreement
Submitting materials related to product design and manufacturing

If such an explanation proves that there is no infringement, clearance may be permitted.

5. Border Measures | The Starting Point of Corporate IP Protection

Border measures are among the most effective pre-emptive blocking devices for protecting intellectual property rights.

In particular, for companies operating in the global market, where intangible assets such as brands, technology, and designs are at the core of competitiveness, a protection strategy at the border stage is important.

A company should comprehensively prepare not only the registration of intellectual property rights but also customs registration, infringement monitoring, and a response strategy at the clearance stage.

Daeryun Law Firm provides advisory and dispute response services related to border measures by forming a task force in which intellectual property attorneys, customs attorneys, and patent attorneys collaborate.

In addition, through collaborative relationships with the U.S. local law firm SJKP and law firms in various countries abroad, we develop strategies tailored to the client's situation.

From Korea Trade Commission unfair trade practice investigations, customs suspension of clearance procedures, to responses to intellectual property infringement disputes, we support the protection of corporate intellectual property rights through integrated legal services.

If you need assistance with a related matter, please 🔗book a legal consultation with an intellectual property attorney.