Trademark Infringement vs. Unfair Competition in Korea: Which Claim?

When someone uses your brand without authorization in Korea, you have two legal vehicles: a Trademark Act infringement claim if the mark is registered, and an Unfair Competition Prevention Act (UCPA) claim that handles well-known signs and broader unfair-competition behavior. The two paths differ in proof burden, damages calculation, and criminal exposure, so whether to pick one or stack both materially shapes outcomes.

Core difference

The Trademark Act is a registered right asserted by a trademark owner. The UCPA addresses unfair competition itself, registration aside. The first decision branch is therefore "do I have a registration?" — when registration is absent or the misconduct goes beyond the registered scope, the UCPA fills the gap.

Trademark infringement claim

Establishing infringement requires (1) a registered mark, (2) the infringer's use of an identical or similar mark, and (3) on identical or similar goods. The owner can pursue an injunction, destruction of infringing goods, damages, and credit-restoration orders (corrective ads). The registration certificate is itself proof of right, so additional showings of well-known status or likelihood of confusion are unnecessary — the regime's biggest advantage.

Five common UCPA claim types

• Item (a) — product-source confusion: identical or similar use of another's well-known product sign causing source confusion
• Item (b) — business-source confusion: identical or similar use of another's well-known business sign
• Item (c) — famous-mark dilution: harming the distinctiveness or reputation of a famous mark (no confusion required)
• Item (j) — product-shape imitation: offering goods that copy another's product shape
• Item (k) — misappropriation of ideas: unauthorized use of business proposals or ideas received in a relationship of trust (added in 2018)

Proof burden — sharply different

Under the Trademark Act, the registration certificate establishes the right and proof is simple. UCPA claims under (a) and (b) require proof of domestic well-known status; item (c) requires the higher standard of fame. You'll have to compile advertising spend, sales, market share, and recognition surveys — costlier and slower. Where a registration exists, the Trademark Act claim is the first move.

Damages — calculation methods

Both regimes share three main damages models: reasonable royalty, infringer-profit presumption (infringer's profit = owner's loss), and statutory damages (court discretion). Korean courts decide both claims in parallel where stacked, but the higher of the two caps the total — UCPA damages exceeding the trademark damages aren't separately awarded.

Criminal exposure — non-complaint nature

Article 230 of the Trademark Act sets criminal infringement at up to 7 years' imprisonment or KRW 100M fine plus seizure of infringing goods, and is a non-complaint offense — even if the parties settle, the prosecution can still proceed. UCPA penalties run up to 5 years / KRW 50M depending on the provision; items (a), (b), (c), and others have moved from complaint-required to non-complaint via 2018-2021 amendments. UCPA also gives KIPO authority to issue compliance orders as administrative sanctions on top of criminal liability.

Choosing your claim — four scenarios

1. Have a registration + identical / similar use: Trademark Act alone — fastest and cleanest
2. Have a registration + broad-pattern misconduct: stack Trademark Act + UCPA — fall back to one if the other is denied
3. No registration but well-known sign: UCPA items (a) / (b) — only viable with strong evidence of well-known status
4. Product-shape / look-alike copying: UCPA item (j) — works even without a design registration

Frequently asked questions

Can I stop infringement without registering?

Yes — through the UCPA. But you must prove domestic well-known status, which is hard for new brands. Five-plus years of consistent Korean presence, plus surveys, sales, and ad records, are typically the floor. So registration remains the most efficient defense, with the UCPA as a backstop.

If I win on both, do I get double damages?

No. Korean courts award the higher of the two; the excess of the smaller award is not separately granted. The point of stacking is outcome assurance — if one claim fails, the other can still carry the case.

What if I find counterfeits on Korean platforms (Coupang, 11st)?

1) Use the platform IP-violation reporting system — Korean platforms generally respond fairly quickly. 2) Concurrently send the infringer a cease-and-desist demand. 3) If unresolved, file a civil preliminary injunction plus the main suit; criminal complaints can run in parallel. Platform reports are usually the first lever.