Daeryun's Tongyeong Office Assistance | A Tongyeong Attorney Successfully Defends Against 90% of the Damages

Daeryun's Tongyeong office listened to the client's detailed account.

The client was selling rings, necklaces, earrings, and other items that she had designed herself at a jewelry shop.

She had also completed design right registration for those designs.

In the meantime, another designer claimed design right infringement, asserting that the ring she had designed and the ring the client was selling were substantially similar, and filed a lawsuit seeking damages for violation of the Copyright Act and the Design Protection Act.

In response, the client came to a specialist attorney at 🔗Daeryun's Tongyeong office to request a defense against the damages.

A design right is an important right that protects the external appearance or form of a product, and is a core element of a company's competitiveness.

If design rights are not protected, other companies may copy them without authorization and cause confusion in the market, which is why design rights are protected by law.

The claims and punishment for design right infringement are as follows.

1. Application for a Provisional Injunction

A design right holder or an exclusive licensee may demand that the infringer suspend or cease the use of the design or other infringing acts.

2. Claim for Damages

Because design right infringement constitutes a tort, the design right holder and the exclusive licensee may claim damages on the basis of the infringer's tort.

3. Claim for Compensation of Unjust Enrichment

Where a design right holder or an exclusive licensee suffers loss due to an act constituting design right infringement, the profit causally connected to that loss is deemed "unjust enrichment," and the infringer is obligated to return it to the design right holder or exclusive licensee as unjust enrichment.

4. Criminal Punishment

Where a design right or an exclusive right of use is intentionally infringed, criminal punishment may be imposed depending on the circumstances of each case.

In addition, where the infringer is a corporation, the corporation shall be subject to a fine in addition to the punishment of the actor.

The client had been selling the ring of that design for only a short time, and the jewelry shop where sales were currently taking place had likewise opened only recently, so the profit from ring sales was almost nonexistent.

Accordingly, under Article 115 (2) of the Design Protection Act*, it was argued that, because there was no evidence to recognize that the substantial profit claimed by the plaintiff had been obtained, the amount of damages could not be calculated.

* Article 115 (2) of the Design Protection Act

② Where a person who has infringed the right claims damages and has transferred the article by which the infringing act was committed, the sum of the amounts under the following subparagraphs may be deemed the amount of loss sustained by the design right holder or exclusive licensee.

1. The amount obtained by multiplying the quantity, among the transferred quantity of the article, not exceeding the quantity calculated by subtracting the quantity of articles actually sold from the quantity of articles the design right holder or exclusive licensee could have produced, by the per-unit profit of the articles the design right holder or exclusive licensee could have sold had there been no infringing act

2. Where there is a quantity, among the transferred quantity of the article, exceeding the quantity calculated by subtracting the quantity of articles actually sold from the quantity of articles the design right holder or exclusive licensee could have produced, or a quantity that could not have been sold for reasons other than the infringing act, the amount that could reasonably be received for the working of the registered design with respect to such quantities

As in the above case, if you have been sued for infringement of a design right or any other intellectual property right, you will need specialized knowledge of the relevant law and legal procedures.

In order to defend and respond appropriately, it is advisable to entrust your case to a specialist attorney and proceed with a consultation.

Daeryun Law Firm (LLC) operates an 🔗Intellectual Property Group and provides assistance to protect clients' rights and interests in all disputes relating to property rights arising from intellectual activity, so if you need help, please request a legal consultation at any time.