[의장권침해금지가처분][공1991.5.15.(896),1236]
Whether the right of a registered design is denied regardless of the existence of a trial for invalidation where all of the registered designs have no newness or originality at the time of application (affirmative)
A design right is granted to a new and creative design, so if the entire registered design is publicly known and publicly announced at the time of application for registration, and there is no new or originality, the scope of the right is recognized. Therefore, the right cannot be acknowledged without relation to the existence of a trial for invalidation.
Articles 5 and 68 of the Design Act
[Plaintiff-Appellee-Appellant] Plaintiff 1 and 1 other (Law No. 355, Jul. 24, 1987) (Law No. 1987, 1514)
[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellant-appellee
Busan High Court Order 90Ra23 dated November 7, 1990
The reappeal is dismissed.
1. As to the first ground for reappeal
According to the reasoning of the original decision, the court below maintained the first instance court's decision that the re-appellant's shape, shape, and shape, etc., of non-bee electronic sirens that obtained a design registration as a design registration number No. 7971, are similar to the shape, shape, and overall, of type, etc., widely used as electronic siren lights at the time of the application, etc., and the above Speaker recognized that the above chairperson is a publicly known Speaker, and on the premise that the type, type, etc., of type, integrated with type, etc., are identical to the type, type, etc., that are subject to comparison with the original decision, and therefore, the court below's decision is acceptable, and it cannot be said that there were errors in the misapprehension of legal principles as to the identity and originality of the Speaker, or in the misconception of facts due to violation of the rules of evidence. We cannot accept the arguments.
2. As to the second ground for reappeal
Since a design right is granted to a new and creative design, the entire registered design is officially known for public use at the time of application, and if there is no new or originality, there is no reasonable ground to recognize the scope of the right. In this case, it is reasonable to maintain the first instance court that dismissed the application for provisional injunction against infringement of this case with the same purport, and there is no violation of law by misunderstanding the legal principles as to the effect of the registered design of the publicly notified public and the system for invalidation trial. We cannot accept the argument.
3. The reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)