Controversial Alley restaurant ‘Deokjuk’ has trademark right, current law recognizes ‘original’

[사진 포항 신촌’s 덮죽 인스타그램 캡처]

This appeal recently posted on a social networking service (SNS) by a restaurant in Pohang became a hot topic. The company is a ‘Dongjuk’ house that has recently become famous through the SBS television show ‘Baek Jong-won’s Alley Restaurant’, and has released its original recipe and product name through the broadcast. After that, when it emerged that a completely unrelated third party franchised the same menu and applied for a trademark right, the original restaurant published an appeal. As the controversy grew, the franchise company withdrew its business and published an apology, but at the time, concerns were raised that the original Pohang restaurant would prefer not to be able to use the ‘Dongjuk’ brand.

On the 21st, the Intellectual Property Office said: “In the case of products that are widely known as’ Dogjuk ‘, the names, trade names and menu names are protected by the’ Law on Prevention of Unfair Competition and Protection of Trade Secrets’ even if the trademark is not registered. It is possible to request compensation for damages or redress through an administrative investigation of KIPO. ”

National trademark law adopts the prior application principle of “granting a patent right to the person who applied first”, but there are many exceptions. Under current trademark law, even if another person first applied for a trademark recognized as an indication of the source of a specific person, if it is confirmed that the application was submitted for deceptive or fraudulent purposes, the trademark right cannot be registered .

As in the original restaurant, if you learn that a third party has requested your name, etc., you must actively respond to avoid interception or copycat applications. Before a trademark is registered, information must be provided and an objection must be filed. If the trademark has already been registered, an invalidation judgment can be requested.

Meanwhile, trademark law recognizes the “right to pre-use names and trade names for small business owners, etc.” Even if someone else has registered a trademark with the name you are using first, you can continue to do business without leaving a sign.

Also, if the name, business name, menu name, etc. They are widely known as their own, such as ‘Dongjuk’, they are protected by the ‘Unfair Competition Prevention and Trade Secret Protection Act’ even if the trademark is not registered. If someone steals it, you can apply to the court for a ban on use and compensation for damages, or obtain redress through an administrative investigation by KIPO.

There has been a controversy over a third party having nothing to do with the original restaurant in Pohang, applying for a trademark for the ‘Dongjuk’ brand. [특허청]

However, the JPO emphasizes that “it is more prudent for the self-employed and small business owners to apply for a trademark in advance and obtain registration from the business concept stage.” Sam-seop Moon, director of trademark design examination at the Intellectual Property Office, said: “It is possible to recognize the prior right of use and avoid a third-party copycat application, but this is only passive protection.” “The best way to prevent it,” he explained.

Reporter Park Hyung-soo [email protected]