(1) Where a person whose business interests have been infringed by an act of unfair competition, a violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets, claims compensation for damage under Article 5 or 11; and where the person who has infringed the business interests transfers the goods causing the act of unfair competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets (hereafter in this paragraph referred to as "act of unfair competition or any other infringement"), the sum of the following may be set as damages: <Amended on Jun. 30, 2011; Dec. 22, 2020>
1. The amount calculated by multiplying profits per unit quantity of the goods that a person whose business interests have been infringed would have been able to sell if there had been no such act of unfair competition or any other infringement, by the quantity not exceeding the quantity that the person whose business interests have been infringed could have produced, subtracted by the quantity of the goods actually sold, out of the quantity of the goods transferred (where the person whose business interests have been infringed was unable to sell the goods for reasons other than the act of unfair competition or any other infringement, the quantity calculated by subtracting the quantity not sold for such reasons other than the act of unfair competition or any other infringement);
2. Where, out of the quantity of the goods transferred, there exists any quantity exceeding the quantity that the person whose business interests have been infringed could have produced, subtracted by the quantity of the goods actually sold, or there exists any quantity that such person was unable to sell for reasons other than the act of unfair competition or any other infringement, an amount that the he or she would have reasonably receive if there had been no such act of unfair competition or any other infringement.
(2) Where a person whose business interests have been infringed by an act of unfair competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets, claims compensation for damage under Article 5 or 11, the profits gained by the infringer through the infringement, if any, are estimated to be the damages suffered by the person whose business interests have been infringed. <Amended on Jun. 30, 2011>
(3) Where a person whose business interests have been infringed by an act of unfair competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets, claims compensation for damage under Article 5 or 11, he or she may claim as damages the amount of money that the person would normally be entitled to receive for using a mark applied to goods if the mark was the object of an act of unfair competition or a violation referred to in Article 3-2 (1) or (2), or for using trade secrets that were the object of the infringement. <Amended on Jun. 30, 2011>
(4) Where the amount of actual damage caused by an act of unfair competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets exceeds the amount under paragraph (3), the excess amount may also be claimed as compensation for damage. In such cases, when awarding damages, the court may consider whether the person who has infringed the business interest was willful or grossly negligent. <Amended on Jun. 30, 2011>
(5) Where the court recognizes in litigation the extreme difficulty, owing to the nature of the case, of proving the damages that has occurred related to an act of unfair competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets, the court may determine a reasonable amount on the basis of the entire tenor of oral proceedings and the results of evidence investigations, notwithstanding paragraphs (1) through (4). <Amended on Jun. 30, 2011>
(6) Where an act defined in subparagraph 1 (j) of Article 2 or infringement of trade secrets is found to be willful, the court may determine the amount of compensation within the maximum of five times the damages recognized under paragraphs (1) through (5), notwithstanding Article 5 or 11. <Newly Inserted on Jan. 8, 2019; Oct. 20, 2020; Feb. 20, 2024>
(7) In determining the amount of compensation mentioned in paragraph (6), the court shall take the following into consideration: <Newly Inserted on Jan. 8, 2019>
1. Whether the infringer has a superior position;
2. Whether the infringement has been done with willfulness or the level of awareness of the risk of causing damage;
3. The scale of damage suffered by the person who possesses trade secrets as a result of the infringement;
4. The economic benefits obtained by the infringer through the infringement;
5. The period, number, etc. of the infringement;
6. The fines imposed for the infringement;
7. The financial status of the infringer;
8. The relative degree of efforts made by the infringer to redress damage.[This Article Wholly Amended on Dec. 21, 2007]