[2] The case holding that, in the case where the shape of the roller and the installed part, a publicly known part of the component of the "sclobing sclobeding sclobing sclobbbing," which is the object of the registered design, is an element affecting the overall aesthetic sense of ordinary consumers who feel the relevant product, the similarity between the registered design "sclobing" and the comparative design 4 "sclobing" should be compared to the whole, since the shape part including the shape part, in order to determine the similarity between the registered design "sclobing sclo

1. In determining whether a design is identical or similar as a requirement for design registration, even if there are parts of the shape or open space necessary to secure the function of a product among the elements of the design, so long as it does not constitute a special aesthetic sense, it shall be determined by the method of an aesthetic sense, including that, unless it does not cause a special aesthetic sense. In a case where a shot sense, depending on the direction to view, is the same and different, it shall be determined by the method to make it identical (see, e.g., Supreme Court Decisions 92Hu490, Nov. 10, 1992; 2004Hu2987, Jun. 10, 2005).

In light of the above legal principles and the records, even though the shape of the roll and the installation are often necessary to secure the function of the “building pented bedclothes,” which is the object of the registered design of this case (registration No. 34577), it constitutes a characteristic part which sees the attention of the people. In order to secure the function of the pertinent product, it cannot be deemed that the shape of the roll and the installation have the same characteristics as stated in the judgment of the court below, and it can be formed differently in light of the overall aesthetic sense even while performing the same function, it is clear that the shape of the roll and the installation have an impact on the overall aesthetic sense of the general consumers who feel the pertinent product. Accordingly, it is difficult to determine the similarity between the registered design of this case and the comparative design of this case, it is difficult to see that the shape of the roll and the installation of the roll have a different shape from each other, and it is also difficult to see that there is a difference between the shape of the roll and the installation of the combined design of this case.

Nevertheless, the court below held that the registered design of this case is not similar to the comparative design 4 on the ground that the shape of the roller and installed part of the roller should be evaluated as low in its importance on the grounds that the shape is necessary for securing the function of the goods and is an officially known shape. The court below erred by misapprehending the legal principles on the determination of similarity of designs, which affected the conclusion of the judgment. The defendants' ground of appeal on this point is with merit.

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)