(b) The level and method of determination of creativity as the requirements for design registration;

(c) The case holding that a registered design is not creative because each product expressing the registered design and the cited design is a container for packing, and it falls under the same similar goods under the socially accepted social norms, and both Speakers can not be deemed to have different aesthetic values by viewing them as a whole;

B. In order to recognize the creativity of a design as a requirement for design registration, it shall be recognized that other aesthetic values are recognized as a whole by combining an aesthetic device of a designer who gives a new aesthetic sense, and whether an aesthetic value, different from the past and present, is recognized or not, not by partially comparing and determining individual elements constituting the design, but by observing each element as a whole, and determining it based on the perspective of the whole combining the two elements. Thus, if an aesthetic value, which is different from the past and present designs, is not recognized as a whole, it cannot be recognized merely because it is merely merely for commercial and functional transformation of a publicly known device.

C. The case holding that a registered design is not creative on the grounds that a container for packing materials containing and preserving products in a form close to liquid is similar in terms of the same quality as a Mazine container, which is a product whose registered design is expressed, and its function and use are identical to that of similar goods in terms of social norms, even though there is a little difference between the cited design and the quoted design in its detailed shape, such as a stone, body crossing, etc. connecting knife and body crossings, both Speakers cannot be seen as having different in terms of overall and similar values, and that such difference between the registered design and the quoted design can be easily created from the quotation if the person has ordinary knowledge in the field of plastic container manufacturing, to which the registered design belongs, and thus, the registered design is not creative.

The costs of appeal shall be borne by the respondent.

According to the reasoning of the original decision, the court below determined that each part of the articles indicated in the registered design (registration number No. 94626) is a package container for the articles indicated in the quoted design 2 (No. 6; hereinafter the quoted design). The two are the same use or function in light of the container used mainly in the kitchen because they are containers storing the same food, and are the same or similar kind of similar goods, and when comparing both designs, the registered design belongs to the same kind of use or function, similar goods, and the registered design is a protruding shape that makes the knife and knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife k.

In order for the Speaker to have the same and similar kind of goods as the goods, the Speaker may not leave the goods, and the type of the design expressed by the Speaker should be the same. The identity of the goods shall be determined depending on whether the goods can be recognized as identical goods in light of the use, function, etc. of the goods (see, e.g., Supreme Court Decisions 84Hu10, May 14, 1985; 86Hu84, Mar. 24, 1987) and the Enforcement Rule of the Design Act (see, e.g., Article 9 and Article 5 of the current Rules before the amendment, Aug. 28, 190).

In addition, in order to recognize the creativity of a design as a requirement for design registration, it shall be recognized as other aesthetic values from the whole by combining the device of a designer who gives a new aesthetic sense, and whether an aesthetic value, different from the past and present, is recognized or not, not from the comparison with part of the individual elements constituting the design, but from the perspective of the whole combining each elements. Thus, if an aesthetic value, which is different from the past and present designs, is not recognized as a whole, it shall not be recognized as creative because it is merely merely because it is merely a commercial and functional transformation of a publicly known device (see, e.g., Supreme Court Decisions 88Hu141, Sept. 26, 1989; 90Hu2133, Oct. 8, 191).

According to the records, since goods expressed in the quotation are recognized as synthetic rubber and polyvinyl chloride mating containers, the court below erred in finding them as packaging containers mainly used in the main notes, or concluded that the goods expressed in the quotation are identical or similar to the goods expressed in the registered design and their function and use are identical to those of similar goods under social norms because they are similar to those of similar goods in terms of social norms, even though there is a little difference between the cited design and the cited design in the detailed shape, such as a stone connected with hand, body crossing, etc., the registered design cannot be seen as having a different aesthetic value from each other in terms of the whole, and the difference between the registered design and the quoted design can be easily created from the quotation if a person has ordinary knowledge in the field of manufacturing plastic containers to which the registered design belongs. Therefore, the court below is justified in holding that the registered design has no originality.

In addition, even if the respondent did not have an opportunity to reflect the claimant's assertion and submit supporting materials in the first instance trial, the respondent may not be considered as the ground for appeal on the ground of illegality such as incomplete hearing in the first instance trial, as long as the opportunity is given in the appellate trial. The grounds for appeal are without merit.

Therefore, the appeal is dismissed and all 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 Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho