Trademark damage calculation in South Korea

The South Korean Trademark Act has been amended on Oct 20, 2020. Among others, damage compensation to infringed parties allowed for the calculation of ordinarily expected royalty rates.

In practice, it is not always possible or appropriate to determine an ordinarily expected royalty (eg, where there is no standard royalty rate or where an average rate may not apply to the case in question).

Under the recent amendment, the wording was changed from “ordinarily expected” to “reasonably expected“, allowing for a calculation based on factors relevant to the specific case, rather than being based on preexisting standards.

The amendment is expected to facilitate damage claims for lost royalties in South Korea. It follows law and legal practice in many jurisdictions.

Most notably, the amendment will allow treble damages to be awarded in certain infringement cases.