Korea First-to-File Trademark Rule: Articles 34 and 35
| Situation | Result |
|---|---|
| Scope of the rule | Two or more applications for identical or similar trademarks on identical or similar goods (Article 35(1) and (2) of the Trademark Act). |
| Different filing dates | The first applicant alone can register the trademark, with exceptions (Article 35(1), (5) and (6)). |
| Same filing date | One applicant decided by agreement among the applicants alone can register. If no agreement is reached or agreement is not possible, one applicant decided by a lottery held by the head of the Ministry of Intellectual Property (MOIP) alone can register. Exceptions apply (Article 35(2), (5) and (6)). |
| Consent | A later applicant, or an applicant not chosen by agreement or lottery, can register with consent from the first applicant or the chosen applicant, with an exception (Article 35(6)). |
| Time of assessment for Article 34(1) | The time of the decision to refuse or register; for items 11, 13, 14, 20 and 21, the time of filing, but whether the applicant is "another person" is assessed at the time of the decision (Article 34(2)). |
First-to-file rule in Korea
Korean trademark priority between competing applications follows a first-to-file rule, with exceptions (Article 35(1), (5) and (6)). When applications for identical or similar trademarks on identical or similar goods are filed on different dates, the first applicant alone can register the trademark (Article 35(1)). Exceptions exist for certain geographical indication collective mark applications (Article 35(5)).
Applications filed on the same date
When such applications are filed on the same date, the head of MOIP orders the applicants to report the result of their agreement within a set period. If no report is made within that period, the agreement is treated as not reached (Article 35(4)).
Applications treated as never filed
For Article 35(1) and (2), an application is treated as never filed if it is abandoned or withdrawn, if it becomes invalid, or if a decision to refuse registration under Article 54 or a trial decision to refuse becomes final (Article 35(3)).
Consent to registration
Consent under Article 35(6) does not help where it is given for an identical trademark on goods identical to the designated goods and services (Article 35(6)).
A trademark identical or similar to another person's registered trademark based on an earlier application (excluding registered geographical indication collective marks), for goods identical or similar to its designated goods and services, cannot be registered. It can be registered with that person's consent to registration, except consent for an identical trademark on goods identical to the designated goods and services (Article 34(1)(7)).
Other grounds in Article 34
Article 34(1) also lists trademarks that cannot be registered, including the following:
- A trademark identical or similar to a trademark recognized by consumers in Korea or abroad as indicating a specific person's goods (excluding geographical indications), used for an unfair purpose, such as seeking unjust profit or causing damage to that person (Article 34(1)(13)).
- An application for a trademark identical or similar to another person's trademark, on identical or similar goods, filed with knowledge that the other person uses or is preparing to use that trademark, where the knowledge came through a contractual relationship such as partnership or employment, business dealings, or another relationship (Article 34(1)(20)).
- A trademark identical or similar to a trademark registered in a treaty party, filed without the right holder's consent by a person who has or had such a relationship with that right holder, designating goods identical or similar to that trademark's designated goods and services (Article 34(1)(21)).
Article 34(1) is decided as of the time of the decision to refuse under Article 54 or the decision to register under Article 68. For Article 34(1)(11), (13), (14), (20) and (21), it is decided as of the time of filing, but whether the applicant is the other person referred to in Article 34(1) is decided as of the time of that decision (Article 34(2)).
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Based on the Korean Trademark Act as in force on 2025-11-11. Written by Youngbong Yoo, Korean patent attorney (ESUNG IP&LAW FIRM).
This page is general information about the Korean system, not legal advice on a specific matter.