(a) Initiation of Examination
Unlike a patent or utility model application, a request for examination is not required for SUBSTANTIVE examination. Design applications are automatically taken up for examination in the order of the filing date. It generally takes about one year from the filing date to complete the examination.
A request for expedited examination can be made once the design application is filed and upon showing that the design is presently being infringed by a third party or is being used/prepared for use by the applicant. Such expedited examination would be also available if any urgent valid need occurs as stipulated by the Design Act (e.g.,, a design related to defense industry).
(b) Requirement for Registration
To be registerable under the Design Act, a design should meet the following requirements;
i) It should fall under the definition of a design given in the Design Act; a design eligible for protection under the Design Act is defined as "the shape, pattern, color or any combination thereof in an article which produces an aesthetic impression on the sense of sight. Therefore, to be protected under the Design Act, a design should be embodied on an article. The term "article" is generally considered as a tangible, movable and independent thing.
ii) Industrial applicability; the designs should be able to be mass-produced in an industrial method.
iii) Novelty; the designs should not be identical or similar to the design which was publicly known or worked or published within or outside of the Republic of Korea before the application for the design registration was made.
iv) Creativity; the design should be a design which could not have been easily created by a person having an ordinary skill in the relevant field from the shape, pattern, color or a combination thereof which was widely known in the Republic of Korea.
v) Furthermore, it should not fall under any of the unregistrable designs provided in Article 34 of the Design Act, which include a design that disturbs the public order or good morals, a design which is identical with or similar to the flag, emblem of nation or public organizations, or a design in a shape that is indispensable for securing function of the item.
Even if a design was published or known or worked by the applicant himself prior to the filing date of the design application therefor, it is deemed to be novel provided that the design application is filed within 12 months grace period from the date the first disclosure was made.
Any person who desires to have his design be presumed novel (i.e., claiming exemption from loss of novelty) must submit a written statement to that effect to KIPO at the time of filing the design application or even after the application, for example, when filing a response to a provisional refusal, an opposition, and an invalidation trial request. In this case, any supporting document substantiating such statement must also be submitted within 30 days from the filing date of the design application if this exemption is claimed at the time of filing the application, or within 30 days from the filing date of a response if the exemption is claimed via such response.