Recently, as the design industry has suffered increasing damage due to counterfeit goods, or "knockoffs," there have been increasing calls for urgent measures to protect design rights from both inside and outside the legal community. The damage suffered by the domestic design industry is estimated at 88 billion won last year alone.

The fashion cycle of a design is usually about three to four months, but it takes an average of six to eight months to register it under the Design Protection Act for protection. It is not uncommon for counterfeits to appear before the registration process is completed. Design protection regulations are also mostly focused on reactive remedies, making them ineffective in preventing damage. This is why design companies and designers often resort to criminal prosecution. However, experts point out that the Unfair Competition Prevention Act has excessively stringent application requirements and a narrow scope of compensation for damages, so counterfeiters continue to manufacture and distribute counterfeit goods despite continuous crackdowns under the "lower the bar" approach.

◇ Design Protection Laws that cannot keep up with fashion cycles= Designers complain that most copying occurs before design rights are registered, which is not protected by the Design Protection Law. Due to the physiology of the design industry, where trends change rapidly, the fashion cycle of a particular design product is short, about three to four months. However, under the Design Protection Act, it takes six to eight months to apply for and register a design right, nearly double the time."

"Under the current law, in order to receive compensation for damages incurred after filing but before registration, the designer must personally warn the design copying business in writing, but it is impossible to filter out all domestic and foreign copycats and warn them in writing," said an apparel industry official. As a result, designers are unable to recover 100% of the damages incurred between filing and registration, and counterfeiters take advantage of this to produce and sell similarly designed products during this period, creating a vicious cycle.


◇'Unfair Competition Prevention Act' is also ineffective= This is why designers are coping with the Unfair Competition Prevention Act, which can be protected even if the design right is not registered, rather than the Design Protection Act. The Unfair Competition Prevention Act protects designs that have not been registered with the Korean Intellectual Property Office by categorizing them into those with and without 'notice and eminence'. 'Recognizable and famous' means that a trademark or designer can be recognized just by looking at the design, such as the checkered pattern of the British fashion brand Burberry. If it is recognized, the infringing copycat is punishable by imprisonment for up to three years or a fine of up to 30 million won.

However, it is very difficult to prove that the works of small and medium-sized enterprises or unknown designers are famous, and if it is not proven, the copycat cannot be held criminally liable, making it ineffective. Individual civil liability alone is not enough to compensate for damages, as it is not possible to aggregate all counterfeit sales in Korea and abroad. "There are anti-unfair competition laws to protect designs that are not registered with the Korean Intellectual Property Office, but unless you are a famous designer or business, it is difficult to prove the awareness and eminence requirements," said Choi Seung-jae (44, 29th Judicial Academy), a lawyer at Darae, a law firm specializing in intellectual property rights.

◇Revamp laws and systems, such as introducing punitive damages= Experts argue that it is necessary to instill a sense of caution in copycats, who have a widespread perception that they should be treated as "lesser beasts," by revamping the legal system rather than relying on ineffective ex post remedies. Considering the fact that it is impossible to detect all 'counterfeits' sold under the radar and the amount of damage caused by copycats cannot be fully calculated, the scope of damages should be greatly expanded to make them pay more than the actual amount of damage. "It is necessary to change the perception of copycats who abuse the current system by expanding the scope of damages like the punitive damages system," said Byunghan Ahn (41-34), an attorney at Hanbyul Law Firm. There is also a need to strengthen the penalties. The penalties for copying designs that are not recognized as notable or famous should be the same as those that are recognized as notable or famous. "There is no penalty for copycats to sell products with similar designs, which is why the number of damage cases is not decreasing," said Kang Kang-oh, 29, a lawyer at the Public Interest Lawyers' Patent Consultation Center. "The 'general deterrent effect of criminal punishment' should be actively utilized, such as making criminal punishment provisions in the law to wake up copycats," said Ahn.