[2] The case denying the establishment of so-called "use design" under Article 45 of the Design Act from the standpoint of the "game machine"

[2] The case denying the establishment of so-called "use design" under Article 45 of the Design Act from the standpoint of the "game machine"

2. Litigation costs shall be borne by the plaintiff.

[Evidence: Descriptions of Evidence No. 1 through 3, 14, and 1]

(a)The registered design of the Plaintiff (registration number No. 233155/198, March 17, 1998, registration number No. 23315/198, December 1, 1998) refers to the combination of the shape and shape of the “game machine” as expressed in the annexed drawing No. 1 as the summary of the design.

B. The Defendant filed a motion for the trial to confirm the scope of the right of the registered design of this case and the shape and form different from those of the registered design of this case, and the Korean Intellectual Property Tribunal has rendered the decision of this case which cited the Defendant’s request for a trial on the grounds as follows (c).

C. Summary of the decision of this case

All of the registered designs of this case and the designs of sub-paragraph (a) are the same as the "game machine" for the product expressed by the Speaker. In the central part of the game, a control tower panel is established that manipulates the monitoring unit and the game game, and the control tower injury is installed with 5 operating pressings, 4 elective pressings and 2 internships, and the upper part and lower part of the above monitoring, and the lower part of the control tower panel are installed respectively.

(a) However, the chairman of the unit (a) has a lighting list installed on the upper part and right part of the upper part of the unit, and has a drum salper at the lower part of the body part of the lower part. On the other hand, the instant registered design is substantially different in that there is no drum and drum salper; and on the other hand, the chairman of the unit (a) is a non-similar design that is of a new aesthetic value different from the instant registered design.

2. Whether the trial decision of this case is legitimate

A. Summary of the grounds for revoking the trial decision of the plaintiff's assertion

(1) The registered design of this case is intended to develop a new product that combines the musical musical musical musical musical and recreational games developed by the Plaintiff on September 1997, which was first made public in Japan. Thus, the scope of its similarity should be wide recognized.

(2)The characteristics of the instant registered design as the design of this exploitation include the arrangement of a team and scambs in the game operation personal register, the arrangement of more than two scambs each at the top and the bottom of the game machine, the arrangement of more than two scambs in each at least two scambs, and the arrangement of a scambs for the whole scambs, such as the musical scambs, in which the upper part is protruding out and the center of the central panel is protruding out and forming the scambs of the scambs of the scambs as a whole. (a) The chairman also shares these design characteristics as it is, in preparation for the entire whole scambs, so the scambs that are scambs

(3)In addition, even if the parts constituting both designs are prepared individually, ① the upper part above is placed rhyth to the upper part of the monitoring, and there is a difference in the thickness of the upper part, but this difference does not change in depth, ② the registered design of this case is in a rectangular form on the right side, and monitors are located between monitors and the panel, while the chairperson of the registered design of this case is in contact with the panel. However, the upper part of the registered design of this case is considerably narrow compared to the monitoring part, and the lower part of the registered design of this case is placed at the bottom of the panel, and the lower part of the registered design of this case is placed at the bottom of the panel, and the lower part of the registered design of this case is not connected with the lower part (a) the lower part of the registered design of this case is not connected to the monitor part, and the lower part is not identical to the lower part of the registered design of this case.

(4)The design of Ghana (A) contains lighting parts protruding on both sides of the upper part of the game machine, which lack the registered design of this case, and drums attached under the bottom of the game machine. However, the registered design of this case also brings about lighting effects to the upper part of the registered design of this case, and thus, it does not carry out functions that are not relevant to the registered design of this case, and furthermore, adding lighting to (a) the design of this case is limited to commercial transformation using lighting parts attached to the plaintiff's another game machine, which are called Dance DanceD, and it is merely nothing more than adding the shape of widely known parts from the consumers who play the game as the front part of the game machine, which are not the whole of the design of this case.

(5) Even if the chairman of Ghana (A) can be seen as a non-similar design similar to the registered design of this case due to the addition of the above lighting and drums, etc., (a) the chairman of the design of this case belongs to the scope of the right of the registered design of this case, because (a) the chairman of the design of this case carries out a design similar to the registered design of this case by separating the location of 1 out of the dyke and Purber joints, among the most distinctive features of the registered design of this case, the location of 1 out of the dyke and Purber joints, and dividing part of the dykes of the suspended and lower part into the lower part, and (a) the dykes of the upper part are also employed by reducing only the width, and thus, the chairman of the design of this case belongs to the scope of the right of the registered design of this case in accordance with Article 45, etc. of the Design Act.

(b) Markets:

(1) Since the body of a Unauthorized Speaker calls for any aesthetic hobby at the person’s mind, in determining the similarity of designs, the similarity of designs shall be determined not by partially separating each element, but by whether a person who observess and supervisess the appearance as a whole to feel different aesthetic sense, and if the dominant characteristics are similar, it shall be deemed similar even if there is a somewhat different detailed difference. However, the objective creativity required by the Design Act is not a high level of originality, i.e., a unique feature that is not similar to all in the past or existing circumstances, and thus, it shall be deemed that a design may be registered under the Design Act if an aesthetic device that combines a new aesthetic device to the extent that the former president is recognized as having a aesthetic value different from the former president (see, e.g., Supreme Court Decision 98Hu706, Nov. 26, 199).

(2) Common points, etc. of the registered design of this case and (a) design of this case

(A) First, according to Gap evidence Nos. 2 and 3, Gap evidence Nos. 6-2, Gap evidence Nos. 8-1, 2, 9-1, and Eul evidence Nos. 9-1, and Eul evidence Nos. 1, both of the registered design of this case and the chairperson of the registered design of this case can recognize the same fact as the musical game, which was expressed by the Speaker, by viewing the music report and signal coming from the screen, and manipulating the music by manipulating the mix and manipulating the music, and making it possible for him to feel the same machine as the disc (DJ).

In addition, according to the contents of the registered design of this case and (a) design of this case, the two chairpersons are common in the basic elements of the composition in that the monitors indicating the screen, monitors of three teams divided into the upper part, the interruption part, and the lower part, protruding the upper part into a spacker part of three teams placed on the upper part, the operation panel department operated by consumers by protruding and protruding in accordance with the screen display, and the lower part.

Furthermore, according to Gap evidence Nos. 4-1 to 46, Gap evidence Nos. 20-1 to 44, each of the above facts can be recognized as a creative part of the game machine as a component that is difficult to find ordinarily in the shape and shape of five clurbius 2 and two clurbs assigned to the top of the operating panel of the registered design of this case (the same is more true in that the clurb is not a part of the original function to reproduce the sound by inserting the compact disc, etc.). Since each of the items of evidence Nos. 13 and 14 are not materials to change the above recognition, the registered design of this case is inconsistent with the order of Plurb, curb, curb, curb, and curbs in the order of (Ga) in the design of this case, the shape and shape of the two curb, one of the two curbs, and the two curbs are similar.

(B) The Defendant asserts that, inasmuch as it is natural for the Defendant to sum up a clert to the left hand and to manipulate the clert to the left hand, if 2 of the instant registered design to put in games, it is necessary for 2 of the instant registered design to manipulate the clert and a clert to write in both hands, while (a) the design of the instant registered design, the Defendant’s operational panel of the chairman of the instant registered design has a functional aesthetic sense compared to the instant registered design, and thus, it cannot be deemed as similar to the two chairman’s operational panel.

However, it cannot be seen that the combinations of Purber and Ston B, which are equipped with the top part of the operating panel, cannot be found in another chapter on the game machine, and the creativity of the registered design of this case is added, and (a) the design of this case adopts the combination of components, as seen earlier. Furthermore, it is difficult to view that the difference in the functional effect that the chairperson brings on, inter alia, affects the aesthetic sense unless there are any special circumstances, and thus, the defendant's above assertion is without merit.

(3) Difference between the registered design of this case and (a) design of this case

(1) However, according to the table of the designs that are written on the basis of the annexed drawings 1, 2, and 3, the front body size of the registered design of this case is larger than that of the front body, and protruding away from the front body size and the front body width of the registered design of this case, the upper body of the registered design of this case is shotly formed, and the front body part of the registered design of this case is no longer formed, and the front body part of the registered design of this case is no more than that of the front body, and the front body part of the registered design of this case is no more than that of the front body part, and the front body part of the registered design of this case is no more than that of the front body part, and the front body part of the registered design of this case is no more than that of the front body part, and the front body part of the registered design of this case is no more than that of the front body part, and the front body part of the registered design of this case is no more than that of the front body part.

(B) The plaintiff asserts that the difference between each constituent element is easily created by a person with ordinary knowledge in the field to which the above chairperson belongs, and it is merely a result of commercial and functional transformation, and thus, it cannot bring about any particular difference in aesthetic sense. However, since parts below the operating panel are not visible from the point of view of those who play games in the future, it cannot be viewed that the core sense of both chairpersons is different due to a difference in the shape such as the body body and the shape of the body.

However, the Plaintiff’s evidence Nos. 6-1, 24, and 25, which correspond to the above alleged facts, are hard to believe and there is no other evidence to acknowledge them. Furthermore, the aforementioned spacker or monitor, and the body body, etc. constitute a game machine which is organically connected with each other. The characteristics of appearance, such as shape and shape, etc. of each constituent part may have considerable influence on the aesthetic sense of the game machine when observing as a whole. Each of the above constituent parts, including spacker, are used widely in the field of the game machine, and it is difficult to view the difference in the above recognition as a characteristic element of only the registered design of this case, and thus, it cannot be deemed as the result of mere commercial and functional transformation (this registered design of this case, providing three spackers from the registered design of this case, cannot be deemed as an essential element of the game machine operation, but it cannot be deemed as an essential element of the spacker, and thus, it cannot be deemed that the part of the registered design of this case cannot be seen as a new model model.

(4) Accordingly, the chairperson of the registered design of this case and (a) subparagraph (a) have some common parts in terms of the basic form that there is the monitoring division, the spacker division and protruding operation panel division of the third group, and further, there is a difference between the two distinctive parts of the above parts, and the operating panel division of the 2nd Espacker, which is a distinctive part, is similar. However, since the specific form and shape of the remaining parts closely connected with it are different in the overall observation as a whole from the registered design of this case, the chairperson of subparagraph (a) cannot be deemed as similar to the registered design of this case.

Furthermore, even if comparing only the lighting parts of the upper group and the remaining parts of the lower body with the exception of the drums of the lower body, both of the chairpersons are different, and (a) the Speaker cannot be deemed to be the Speaker who uses the registered design under Article 45 of the Design Act or similar designs.

C. Sub-committee

Therefore, the chairperson of subparagraph (a) does not belong to the scope of the right of the registered design of this case, and the decision of this case, which is the conclusion, is justified.

3. Conclusion

Thus, the plaintiff's claim of this case is without merit.

Judge Gu-Appellee (Presiding Judge)