There are an increasing number of lawsuits relating to new technologies where the plaintiffs or complainants attempt in vain to claim damages for intellectual property infringements and the courts sometimes award damages for torts instead. New technologies in the field of computers and telecommunications have created totally new markets, which give rise to a variety of disputes relating to misappropriation of intangible properties or unfair competition. Courts nowadays encounter cases where the alleged misappropriation of intangible properties do not amount to intellectual property infringement but to a tort. There have been raised various questions as to the requirements of tort especially the standards of wrongfulness and the feasibility of granting injunctions preventing the alleged tort under the Civil Code which have traditionally allowed for injunctions only in cases of infringement upon real property rights. Like in other jurisdictions, there are several statutes dealing with misappropriation of intangible property or unfair competition in Korea. First, the Unfair Competition Prevention and Trade Secret Protection Act (“UTA”) may be the utmost important statute to rely on in cases of unfair competition. Yet, the UTA is limited passing off and trade secret misappropriation and may not extend to cover other unfair competition which may arise in new markets due to new technologies. Secondly, the Antitrust & Fair Trade Act (“Antitrust Act”) prohibits not only anti-competitive practices but also unfair trade practices. The Antitrust Act heavily relies on the initiatives by the Fair Trade Commission of Korea so that the victims of unfair trade practices may not bring a lawsuit to a court asking for an injunction. It is submitted in this article that injunctions may and should be available not only to real property infringements but also to torts which cause continuous harm to the victim and which are clearly wrongful. However, the Supreme Court has in several cases shown its reluctance to granting injunctions prohibiting torts in general except for infringements upon real property. The Civil Code Amendment Bill does not provide for injunctions on torts either. It is proposed in this article, therefore, that there must be legislative efforts to make revisions to the UTA or to the Antitrust Act to the effect that the victims are awarded effective remedies including injunctions against misappropriation of intangible property or unfair competition. Finally, both in interpreting the current statute and in making legislative reforms, newly emerging or changing morality or ethical standards should be reflected. And, also, a close attention should be made to making a good balance between conflicting interests of technology developers, consumers, intangible property owners, and other competitors.
(0)
(0)