[2] The case affirming the judgment below that the patent application design, comparative design, and comparative design constituted a similar design in light of the whole

[2] In a case where Gap filed an application for design, Eul filed an application for design, and the Korean Intellectual Property Office rejected a registration pursuant to Article 5 (1) 3 of the Design Protection Act on the ground that the comparable design publicly known to the Internet before the application was similar to the comparable design, the case affirming the judgment below holding that the two designs as a whole are similar to the two designs on the ground that the two designs are identical in terms of both high-lateral body, which have a little width compared to the length of the straight, and have the same distribution and weight as the uppermost, and are in line with the width of letters, eroding, form, etc., and they are similar. However, in the case of small text “g”, the application design is identical to the comparison design, and there is a little difference between the two designs and the lower parts, and the overall design is different from the comparison design, and the overall design does not cause a difference in letters, but it does not cause a difference in the core sense.

In determining the requirements for registration of a design, whether the design is similar shall not be separately prepared, but shall be determined depending on whether a person who observess the appearance of the design as a whole causes a different aesthetic sense. If the dominant characteristics are similar, it shall be deemed similar even if there is little difference in detail (see Supreme Court Decision 2005Hu1097, Jan. 25, 2007, etc.). This legal doctrine applies likewise to the design of a font as provided in Article 2 subparag. 1-2 of the Design Protection Act. Meanwhile, since the design does not require a good character, many letters have been developed in various ways since human beings performed a character, and it is difficult for human beings to change the design significantly by considering the basic form of letters and the unique feature of the font, the similarity should be determined by sufficiently taking into account the unique characteristics of the design.

According to the reasoning of the judgment below, the court below determined as follows: (a) the design of this case (application number omitted), comparative design at the time of the application of this case (application number omitted), comparative design, and design B, both designs have a little width compared to the length of line, (b) both of the two designs have a strong range of width and weight compared to the length of line, (c) the two of the gates and small letters have the same distribution and weight-centered centering on the boundary line, and (d) the width, emulation, form, etc. of letters are similar. However, in the case of small text “g”, the application design of this case is the same as the design of this case; (b) there is a little difference between the comparison design and the lower part, and as a whole, the entire design has a difference between the two designs expressed with the upper part and the lower part, but this does not constitute a similar design on the ground that it does not cause a difference in depth.

In light of the above legal principles and records, even if the unique characteristics of the font design are fully considered, the patent application design of this case and comparative design of this case are similar. Thus, the above judgment of the court below is just and there is no error of law by misunderstanding legal principles as to the similarity of

In addition, Article 5(2)3 of the Enforcement Rule of the Trademark Act (amended by Ordinance of the Ministry of Knowledge Economy No. 180, Mar. 31, 2011) of the former Enforcement Rule of the Design Protection Act (amended by Ordinance of the Ministry of Knowledge Economy No. 180, Mar. 31, 2011) is clear that the judgment of the court below is erroneous, but it is not a reason for correction of the judgment and it is not a reason for reversal of the judgment.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)