Hermès Adds Another Meaningful Victory in South Korea
Earlier this year, Hermès won a lawsuit against PLAYNOMORE, a Seoul-based handbag brand, for manufacturing and selling look-alikes that have the same shape and features of Birkin and Kelly except for the insertion of PLAYNOMORE's cartoonish eyeball design. The Seoul Supreme Court relied on the Unfair Competition Prevention Act (UCPA) to hold the brand liable. (See my earlier post to learn more about the case.) The Seoul District Court just handed another victory to the French luxury brand. This time, it ruled that an atelier in Seoul ran afoul of the UCPA by offering craft classes on how to make essentially fake Birkin and Kelly handbags, both of which are protected under design (trade dress, to be more precise) trademark.
The facts of this case are relatively straightforward. The atelier is in the business of offering craft classes. One of the classes teaches students how to make a leather handbag on their own. The atelier provided to its students pre-prepared materials that, once assembled, resemble, if not copy, the shape and features of Kelly and Birkin, two of Hermès' iconic bags. The judge reasoned that teaching how to make a fake Birkin or Kelly, in essence, is tantamount to manufacturing and selling it, which is strictly prohibited by the UCPA.
The brilliance of this decision, from my perspective, stems from the judge's willingness to broadly construe and thus apply the relevant statutory provisions of the UCPA. South Korea has a civil law legal system under which codified statutory provisions are the primary source of law relative to precedents. Here, the UCPA does not explicitly condemn the behavior the atelier has been engaging in. The judge could have easily called it a day by ruling that the atelier did not violate the letter of the law. However, the judge did not merely end his legal analysis there. The judge explained that the classes fall within the scope of the UCPA because the atelier was unfairly free-riding on the goodwill of Hermès and its famed products. The atelier can be seen as having circulated in commerce much cheaper versions of Hermès bags, knowing that they are hugely sought after in South Korea.
Although it is too premature to conclude just with these two cases that South Korea is heading in the direction of affording greater protections for luxury brands' intellectual property assets, it indeed is a promising sign for luxury brands that are continuously grappling with the issue of counterfeits in the Asian markets. In that light, the recent decision from Seoul has just given them another tool in their ammunition box.
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