Lee International

As there has been an increase in impersonators running fake Instagram accounts, the Korean Intellectual Property Office (KIPO) warned that acts of impersonating celebrities on social network service (SNS) accounts of a famous company name or a celebrity would be deemed to violate the Korean Trademark Act (“TMA”) and the Unfair Competition Prevention and Trade Secret Protection Act (“UCPA”), and can be subject to criminal remedies or administrative order as well as civil remedies.

The KIPO has been successfully operating a special system called “Special Judicial Police (SJP), ” the country’s first investigative authority specializing in investigating counterfeit products since its introduction in September 2010.  The SJP system was set up so that administrative officials with IP expertise could conduct the investigation considering the difficulty in investigating patent, design and/or trademark infringement by general police officers without expertise.  For example, if trademark infringement is reported, the SJP would ex officio issue a corrective order and conduct criminal investigation.  If any unfair competition act is reported, the SJP would ex officio issue a corrective order only. 

For example, if the fake SNS account includes a word that is identical or similar to a registered mark and the services offered by the SNS accounts are identical or similar, it would constitute a trademark infringement.  In such case, simultaneously with filing a civil action, it is possible to file a complaint with the SJP of KIPO requesting criminal remedies or administrative order regarding the acts of trademark infringement.  A person who constitutes a trademark infringement is subject to a prison term of not exceeding seven years or a fine not exceeding 100 million Korean won (based on Article 230 of the TMA). 

In addition, the UCPA defines “unfair competition acts” as ① acts of impersonating another person’s SNS account (“acts of causing confusion of business entity” of 2(1)(ii) of UCPA) and ② acts of using SNS account consisting of a name which is identical or similar to another person’s name or stage name which is well-known (“acts of infringing on publicity right” of 2(1)(xii) of the UCPA), etc.   It is possible to request the SJP to conduct an administrative investigation regarding the acts of unfair competition.  If acts of unfair competition are identified, the SJP would issue a corrective order to stop the acts of unfair competition. 

According to the director of Industrial Property Protection Cooperation Bureau of the KIPO, with the transition to the digital era, a variety of acts of trademark infringement and unfair competition have been reported, and thus, the KIPO will continue to make efforts to maintain a fair trade order by regulating such illegal acts based on the relevant laws.   

In conclusion, it will be possible to effectively prohibit and prevent the unauthorized use of a name of a famous company or a celebrity with fake SNS accounts through SJP’s administrative procedures, such as filing a request with the SJP to conduct an administrative investigation for acts of unfair competition, and/or for acts of trademark infringement as well as filing a legal action seeking an injunction to close the relevant SNS accounts, compensation for damages and restoration of business reputation.