2. The costs of the lawsuit are assessed against the defendant.

(a) Details of the trial decision;

On June 18, 2008, the defendant filed a petition against the plaintiff for a registration invalidation trial on the registered design of this case as stated below with the Intellectual Property Tribunal:

After the Korean Intellectual Property Tribunal tried the above case on April 28, 2009 as the case No. 2008Da1775, the Korean Intellectual Property Tribunal rendered the trial decision of this case which cited the above case on the ground that the registered design of this case falls under Article 5 (1) of the Design Protection Act because it corresponds to the comparison design of the following multi-family designs, and its registration should be invalidated.

B. The registered design of this case

(1) Date of application/registration date/registration number: January 10, 207/40 April 22, 2008/48941

(b) The name of the good: ethyl lamps;

(c) Description and drawings of the design: as shown in the attached Table 1.

(c) A comparable design;

(1) A comparable design 1

Compared design 1 is a design described in the registered Patent Gazette (registration number: 10-066162, name: clamum for morizontal installation) published on December 27, 2006, and its shape and shape are as specified in attached Table 2-1.

(2) Compared design 2

The comparative design 2 is a clamp design installed at the electrical construction site for the structural improvement of the inside circulation of Seoul Metropolitan Government, supplied by the defendant on August 16, 2006, and the shape and shape of the comparative design 2 are as shown in attached Table 2-2 (However, there is no dispute between the parties that the comparative design 2 is substantially the same as the comparative design 1).

[Ground of recognition] Nos. 1 through 4, 2

2. Issues;

The key issue of this case is whether the new or objective creativity of the registered design of this case is denied by the comparative design.

3. Judgment on the issue

A. Criteria for determining similarity of design

In determining the requirements for registration of a design, the similarity shall not be separately compared to each element of the design, but shall be determined depending on whether a person who can observe and observe the appearance of the design as a whole causes different aesthetic sense. If the dominant characteristics are similar, it shall be deemed similar even if there is little difference in the detailed point. Even if there is the shape of an official announcement among the elements, unless it does not cause a special aesthetic sense, it shall be determined based on the aesthetic sense that it is included as a whole, unless it does not cause a special aesthetic sense. Further, the objective creativity required by the Design Act is not similar to that of a high level, i.e., a unique feature that is not similar to all existing or existing, and it is based on the past and existing creation that combines a novel creation that causes a new aesthetic sense, and thus, a design registration under the Design Act may be granted if the entire design is recognized to the extent that it is recognized to have a different aesthetic value from the previous design, but even if creativity is partially recognized, it shall not be recognized as a registered design as a whole and modified design (see Supreme Court Decision 20076Da297,2, etc.

On the other hand, in evaluating the aesthetic sense of a design, the functional aesthetic sense following the use of a product expressing the design should also be taken into account as well as the aesthetic aesthetic sense of the design itself. If it is evident by the drawing that the product may change its form due to the function or characteristic of the design, the similarity of the design should be determined not only by the urban form of the design but also by the difference of comprehensive aesthetic sense, which is obtained individually from the shape of the design that is the object of comparison with the shape that is the object of comparison with the shape that is the object of comparison in which the product can be used. In this case, when evaluating the difference of comprehensive aesthetic sense, the relative frequency of each form according to the function of the product should also be considered.

B. Whether the registered design of this case and the comparative design are similar

Since comparative design 1 and 2 are substantially the same design, it will examine the similarity between the registered design of this case and the comparative design 2.

The design of this case and the comparative design 2 are both expressed in the shape “,” as seen in each floor plan, in the shape “the body part is divided into two parts. The body part is composed of the fixed tags on the left side of the body, the pressure tags on the right side and the pressure tags attached; ② as seen above, as seen in each level of elevation, fixed stampers are repeatedly formed with an studio part and protruding part; ③ One string part is formed repeatedly in the body part, and the other side is formed so that the body part is exposed to the outside of the body part, and two strings, including widths, are formed in two separate parts. However, the registered design of this case is divided into two parts, but the comparative design of this case is one, ② the comparative design of this case formed in the shape of a fixed 2ndrode in the direction of the comparative design, ③ the fixed 2nding part of the registered design in the direction of the comparative design in the direction of the comparative design in this case, and ③ the fixed 2nding part of the registered design in this case.

However, it is clear in the drawing that the location and degree of pressure can vary depending on each of the clamping voltss. If the location and degree of pressure are changed to 90∑s compared with each of the clampings and pressure members, then the location and degree of pressure can be changed to the home of the fixed pattern. In this case, it is similar to the two of the comparative design 2 simply divided into two.

However, chloro lamps, the object of which the registered design of this case and the comparative design of this case are indicated, are metal and rubber material used to fix the provisional material in order to prevent the temporary material from escaping from vibration in the process of installing various provisional material such as a bridge lighting on the ethyl lux of a bridge. The product of the registered design of this case can be used in various forms, depending on the shape of the temporary material, depending on the location of tensions and pressures, and their angles are different from each other. Thus, the above 90∑ 2 uses the registered design of this case is merely one of them, and the location and degree of the provisional material shape are different from each other, taking into account the diversity of the shape of the temporary material form, and the fixed strength of the lux. However, the shape of the 90∑ 2 of the comparative design can be deemed to be very rare in terms of the shape of the lux and pressures, and the shape of the use can not be deemed to be different from the shape of the comparative design of this case.

Therefore, despite some common points, the two designs are different in terms of overall aesthetic sense and are not similar to one another. Thus, newness of the registered design of this case cannot be denied by the comparative design.

4. Conclusion

Thus, the registered design of this case cannot be invalidated because it falls under Article 5 (1) of the Design Protection Act, and the trial decision of this case is unlawful differently from this conclusion. Thus, the plaintiff's claim seeking revocation is justified.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)