디자인보호법위반
All appeals by the Defendants are dismissed.
Summary of Grounds for Appeal
On February 10, 2012, the Defendants were aware of the fact that they had to receive the certification of contents from the victim, and that the process had already been 70% in progress. Therefore, there was no intention about infringement of the design right.
As the design drawing was modified and constructed with the approval of the Naju City that knew of the fact of infringement of the design right, the Defendants did not know that there was no possibility of expectation of lawful act, and that the modified design drawing was an infringement of the victim’s design right.
In light of the fact that the victim, who is an employee of U.S. Co., Ltd. (hereinafter referred to as “U”) who delegated the design right, provided him/her with all materials necessary for design, and the victim sent a certificate of content to him/her on February 10, 2012, the victim ought to be deemed to have impliedly consented to the use of the victim’s design right.
The punishment of the lower court on the Defendants of an unreasonable sentencing (2 million won by each fine) is too unreasonable.
Judgment
The following facts are revealed according to the evidence duly adopted and examined by the court below on the finding of facts of mistake or misapprehension of legal principles.
B. Around November 201, the Jeju City entered into a design service contract for the instant construction work with V certified architect.
S, a V certified architect employee, received the design drawings, estimates, and specifications of the frame for the use of the victim's design by e-mail from T, an employee of U who has obtained a patent and approval for the use of the design right from the victim, and used them in the design drawings in accordance with the above design service contract.
At the time, T was aware that the patent and the design are the same, and we did not talk about the design right only with the patent right.
B. On December 201, 201, the Jeju City received delivery from V certified architect with respect to the instant construction work.