거절결정(디)
1. The decision made by the Intellectual Property Tribunal on November 29, 2017 by the Intellectual Property Tribunal on a case No. 2016 Won5499 shall be revoked.
2. The costs of lawsuit shall be.
1. Basic facts
(a) Date and number of the application: The product subject to design on December 3, 2015, 30-2015-614152): A description of the design, the main point and drawings of the creation: Attached Table 1; 4) an applicant: “Co., Ltd. (3S Co., Ltd., Ltd., Ltd., Ltd.)”; and a change of name as of December 14, 2015 to a trade name as of December 14, 2015.
B. 1) Date of prior design / The filing date of registration / the registration number/ the publication date of registration: The product subject to design on March 2, 2011 / 2/ April 2, 2012 / 63943/2 on April 12, 2012: 3) the description of the design, the main points of the creation, and drawings: Attached Form 2; c) the Plaintiff filed an application for a prior design on December 3, 2015.
On April 19, 2016, the Korean Intellectual Property Office examiner notified the Plaintiff of the grounds for rejection that the design cannot be registered pursuant to Article 33(1)3 of the Design Protection Act and provided the Plaintiff with an opportunity to submit a written opinion.
On June 20, 2016, the Plaintiff submitted a written opinion.
On August 22, 2016, the Korean Intellectual Property Office rendered a decision to reject the application for rejection on August 22, 2016, that the ground for rejection was not resolved.
(2) On September 22, 2016, the Plaintiff filed a petition for revocation of the instant decision of rejection (2016 Won5499). On November 29, 2017, the Intellectual Property Trial and Appeal Board rendered a trial decision to reject the Plaintiff’s petition of rejection (hereinafter “instant decision of rejection”). The Intellectual Property Trial and Appeal Board rendered a trial decision to reject the instant decision of rejection based on the foregoing grounds for rejection (hereinafter “instant decision of rejection”).
【Facts without dispute over the grounds for recognition, Gap evidence Nos. 1-5, the purport of the whole pleadings
2. Determination as to the propriety of the instant trial decision
A. The summary of the parties’ assertion 1 is that, although the application design is not similar to the prior design by forming an aesthetic sense entirely different from that of the prior design, the instant trial decision is unfair on the basis of the basic functional form of both designs.