Adding Slashes to Avoid Plagiarism Disputes... Helpless Against Design Imitation Crimes

Design Rights Infringement Up 63.4% Over 3 Years
Difficulty Proving Plagiarism Creates Enforcement and Punishment Gaps

As time goes by, the methods of imitation that deceive consumers are becoming more sophisticated. While 'trademark infringement,' which involves using luxury brand trademarks as they are, was the traditional method, recently 'design infringement,' which slightly modifies famous designs and distributes them, has been rampant. Experts point out that there is a blind spot in the crackdown and punishment of design imitation crimes, and legal supplementation is needed.

Clothing manufactured and distributed last year by an influencer who imitated the design of a famous brand
[Photo by Korean Intellectual Property Office]

According to the Korean Intellectual Property Office (KIPO), last year, the KIPO Special Judicial Police for Technology and Design (Technology Police) criminally charged a total of 134 people for design rights infringement, an increase of 63.4% compared to 82 people in 2020. The number of people criminally charged for design rights infringement has been increasing every year. The number of criminal charges was 72 in 2021, 122 in 2022, and 134 last year, marking the highest in the past five years.

With the development of social networking services (SNS), methods of design infringement are diversifying daily. While imitating the unique designs of famous brands, infringers slightly modify the external features to cleverly avoid plagiarism disputes. Because of this, officials say that crackdown and punishment are difficult.

A KIPO official said, "Even if the rest of the design is exactly the same, adding just one more stripe can be claimed as not plagiarism, making it difficult to prove design imitation," adding, "Compared to trademark infringement, crackdown and punishment are more difficult, and there are almost no cases where consumers judge and report it."

In fact, in September last year, a famous influencer was brought to trial on charges of manufacturing and distributing clothing, shoes, and jewelry imitating luxury brand designs for three years, earning a total criminal profit of 2.43 billion KRW. This was the first case where the suspect was arrested for violating the Design Protection Act and the Unfair Competition Prevention Act.

There is also a legal blind spot in punishment. Imitation products can be punished mainly under the Design Protection Act and the Unfair Competition Prevention Act. The Design Protection Act has a long duration of 15 years but is difficult to prove plagiarism. The Unfair Competition Prevention Act is relatively easier to prove plagiarism but has a short duration of 3 years. Most cases are punished under the Unfair Competition Prevention Act, but the short duration creates gaps in punishment.

KIPO is responding by establishing a dedicated support team to crack down on the diversifying design imitation crimes. In April, it set up the 'Design Crackdown Support Team' under the Korea Intellectual Property Protection Agency, which monitors distribution situations by acting as general buyers and retailers. However, with the recent influence of Chinese e-commerce platforms like AliExpress and Temu, there are clear limitations in preventing the increasingly spreading design infringement.

Kim Kyunghwan, CEO and lead attorney at Minhoo Law Firm, advised, "Because it is difficult to prove plagiarism under the Design Protection Act, most cases are punished under the Unfair Competition Prevention Act, but the short duration of 3 years is the biggest problem and legal blind spot," adding, "There is a need for alternatives such as extending the duration of the Unfair Competition Prevention Act."