2. The costs of lawsuit shall be borne by the Plaintiff.

A. The registered design of this case

1) Registration number/filing date/registration date: (Design Registration No. 1 omitted)/ March 23, 2006/ March 5, 2007

2) Names of goods: Check-up of valves;

3) Drawings: as shown in [Attachment 1].

4) Design right-holder: the Defendants

(b) A design subject to verification;

1) Names of goods: Check-up of valves;

2) Drawings: as shown in [Attachment 2].

(c) Pre-designs;

1) Pre-design 1

A) Registration number / filing date / Date of registration: (registration number 2 omitted) / February 27, 1998/ November 18, 1998

(b) Names of goods: Poppy valves;

C) Drawings: (A) of attached Form 3.

2) Pre-design 2

A) Registration number / filing date / Date of registration: (registration number 3 omitted) / May 13, 1998/ December 22, 1998

(b) Names of goods: Poppy valves;

C) Drawings: as specified in attached Form 3(b).

(d) A comparable design;

(i) Source: the Utility Model Gazette (Disclosure Number omitted) disclosed to the Korean Intellectual Property Office;

2) Date of disclosure: February 7, 2000

(iii) Goods: Poppy valves straw.

4) Drawings: as shown in [Attachment 4].

E. Details of the instant trial decision

1) On May 27, 2015, the Defendants filed a petition against the Plaintiff for an affirmative trial to confirm the scope of rights by asserting that “The challenged design and the registered design of this case are identical or similar to each other, so the design subject to confirmation falls under the scope of the right of the registered design of this case.”

2) On November 19, 2015, the Korean Intellectual Property Tribunal rendered the instant trial ruling citing the Defendants’ request on the grounds that “the design subject to confirmation is not identical to the already known prior designs, but can be easily created from prior designs. Furthermore, the design subject to confirmation is very similar to the registered design in the instant case, and thus falls under the scope of the right to the registered design in the instant case.”

[Ground of recognition] Evidence Nos. 1 through 4, Evidence Nos. 1 through 5, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

1) The challenged design and the comparative design are identical in the shape of the main body with ① the shape of the main body, ② the shape of the main body is protruding the upper body vertically above the main body, ② the shape of the external body is formed; ③ the shape of the main body is protruding the upper body, ③ the shape of the external body is prone in the outer body, ④ the supply officer extends the shape of the outer body to the outer body, ④ the shape of the outer body is prone in the middle of the main body, ⑤ the conclusion of the contract is the right of the main body and the external body forms the stillbirth in the outer body. The shape of the main body is flat, but the comparison design is the upper body’s upper body’s upper body’s upper body’s upper body’s upper body’s upper body’s upper body’s upper body’s upper surface is formed; ④ the size of the main body’s outer body’s emission from the outer body of the main body and the size of the design subject to comparison does not change the external body’s upper body’s upper body’s upper function.

2) The registered design of this case and the comparative design of this case are the same shape as “the registered design of this case” as a whole, with the following: (i) the main body is the body shape in which the central body is composed of the body shape in which the central body is flick, (ii) the emission flick is vertically protruding in the upper body part; (iii) the flick V is in the left side of the main body; and (iv) the supplier is extended to the outside part of the main body, and the flick is in the outer part; and (v) the conclusion stage is in the right right side of the main body and the flick is formed in the outer part; and (v) the registered design of this case is in the shape in which the flick is in the outer part of the main body shape, and there is a difference between this part and this part of this case’s registered design in the shape that is widely known in the field of poppy, and thus, it is nothing more than the scope of the registered design of this case’s registered design.

3) Even if the reasons indicated in the above paragraphs (1) and (2) are not acknowledged, ① the registered design of this case is the central body of the body, whereas the design subject to the verification is equal to the central body of the body. ② The registered design of this case is equal to the size of stillbirth and the external body of the body of the body of the body of the body of the body of the body of the body of the body. The challenged design of this case is larger than the outer body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body, ③ the registered design of this case is in the shape of the body of the body of the body of the body of the body of the body of the body of the body of the body.

4) Nevertheless, the instant trial decision that was otherwise determined is unlawful and thus ought to be revoked.

3. Whether the design subject to verification is a free-working design;

(a) Relevant legal principles;

If a design compared with a registered design could easily be created by a person with ordinary knowledge in the field to which the design pertains by means of a shape, pattern, color, or combination thereof widely known in the Republic of Korea before the application for the registered design, the design does not fall within the scope of the registered design without comparison (see Supreme Court Decision 2002Hu2037, Apr. 27, 2004, etc.).

B. Specific determination

1) Whether the challenged design and the comparable design are similar

A) Preparation for goods

The product subject to the challenged design and the comparable design is related to the "heat" used to control the quantity supplied according to the operation of the controlling hand while connecting the water pipe to the water pipe so that water supply can be supplied in the singular, singing, and singular, etc., and its use and function are the same.

B) the preparation for shape and shape

(i)Criteria for judgment

In determining the similarity of a design, each element of the design should not be prepared partially separately, but it should be determined by whether the impression and impression that can be ventilated by the people who observe and observe the entire design with the mind of the people. In this case, from the perspective of whether the most easily leading part of the design is identified as an essential part and observing it and causing a difference in the aesthetic sense of ordinary consumers, the similarity should be determined, and if the dominant characteristics are similar, it should be deemed as similar even if there is little difference in detail (see Supreme Court Decisions 2004Hu2277, Jun. 29, 2006; 2005Hu1097, Jan. 25, 2007, etc.). In addition, if the common part of the two designs are the basic or functional form of the goods, it should be evaluated as low, and if such parts are naturally the same or functional form of the design, it should not be deemed as identical or similar to each other (see Supreme Court Decision 2016Hu1664, Jun. 26, 2005).

The drawings of the design to be examined and the drawings of the design to be examined are as follows. The names of each component shall be as follows:

A person shall be appointed.

⑶ 확인대상디자인과 비교대상디자인은 ① 본체, 배출구, 조임볼트, 공급관으로 구성되고, 본체의 중앙부분에서 위로 배출구가 연결되어 ‘⊥’ 형상을 이루고 좌측 끝부분의 외주면에 나사산이 형성되어 있고, 배출구의 끝부분 외주면에도 나사산이 형성된 점, ② 조임볼트가 본체의 우측 끝부분에 링모양으로 형성되어 있고 그 표면이 일정한 간격으로 평평하게 깎여 있는 점, ③ 공급관이 조임볼트 우측으로 돌출되도록 본체로부터 일직선으로 연장되면서 그 끝부분 외주면에 나사산이 형성된 점, ④ 전체적으로 ‘ ’와 같은 형상과 모양을 이루는 점에서 공통된다.

⑷ 한편, ㉮ 확인대상디자인은 본체의 외주면이 일직선이고 그 외경이 공급관의 외경과 같아 본체와 공급관이 조임볼트를 사이에 두고 일직선을 이루며 조임볼트와 본체 사이에 두께의 차이로 인한 단턱이 명확히 형성되어 있는 반면, 비교대상디자인은 본체가 만곡진 형상으로 조임볼트와 본체 사이에 두께의 차이로 인한 단턱이 형성되어 있지 않고, 본체의 좌측 끝부분의 외경보다 본체의 우측 끝부분의 외경이 더 큰 점, ㉯ 확인대상디자인은 본체와 배출구가 연결되는 ‘⊥’ 형상 부분이 직각을 이루고 있는 반면, 비교대상디자인은 본체와 배출구가 연결되는 ‘⊥’ 형상 부분이 완곡하게 이루어져 있는 점, ㉰ 확인대상디자인은 본체와 배출구의 연결부분에서 배출구의 나사산 외경이 본체의 외경보다 큰 반면, 비교대상디자인은 배출구의 나사산 외경과 본체의 외경의 크기가 같은 점에서 차이가 있다.

(v) Examining this in light of the aforementioned legal principles, first of all, both designs: (i) through (iv) is a shape that basically has to be equipped in order to secure the function of supplying water; (ii) it is necessary to assess the importance of both designs when determining whether the two designs are similar. However, the part that can easily attract the attention of the person who is deemed to be installed in the spoppy or the spoppy, etc., is a shape with the spoppy. Thus, the major feature that affects the overall aesthetic sense of the two designs is the spoppy of the spoppy, the spoppy, the spoppy, the spoppy, and the spoppy, the spoppy, and the spoppy, the spoppy and the spoppy are likely to have a significant difference in the heart when comparing and observing

2) Whether the challenged design can be easily created from the comparable design

A design with low creative level can be easily created by a person with ordinary knowledge in the field to which the design pertains (hereinafter referred to as “ordinary designer”), such as a design, etc., if the shape, pattern, or color of a design or a combination thereof is almost imitated or diverted as it is, or if it was partially modified, it is merely a commercial or functional transformation of which other aesthetic value is not recognized as a whole, or a design which is merely modified, combined, or used by a creative method or an expression method in the field of the design, etc. (see Supreme Court Decision 2008Hu2800, May 13, 2010, etc.). However, as seen earlier, since the design subject to confirmation differs from the design subject to comparison described in paragraph (1)(B) of the same Article, it is difficult to view that the design subject to confirmation has either copied or diverted the shape and pattern of the comparative design as it is almost about, or has not been partially modified by an expression or expression method in the field of the design.

Therefore, it is difficult to view that an ordinary designer is a design that can be easily created from a comparative design, and there is no other evidence to deem that the challenged design consists of a publicly known design, or that it constitutes a free-to-work design that can be easily created from a publicly known design.

3) In general

Therefore, it cannot be said that the challenged design is similar to the comparable design, or that it can be easily created from the comparative design.

4. Whether the registered design of this case is similar to the comparable design

(a) Preparation of goods;

The registered design of this case and the goods subject to the comparative design are related to the "heat" used to control the quantity supplied according to the operation of the controlling hand while connecting water pipes to the water supply to the sprink, sprink, sprink, sprink, etc., and the use and function of the registered design of this case are identical.

(b) Preparation of shape and shape;

1) The design of this case and the comparative design are prepared as follows.

A person shall be appointed.

2) Specific determination

가) 이 사건 등록디자인과 비교대상디자인은 ① 본체, 배출구, 조임볼트, 공급관으로 구성되고, 본체의 중앙부분에서 위로 배출구가 연결되어 ‘⊥’ 형상을 이루고 좌측 끝부분의 외주면에 나사산이 형성되어 있고, 배출구의 끝부분 외주면에도 나사산이 형성된 점, ② 조임볼트가 본체의 우측 끝부분에 링모양으로 형성되어 있고 그 표면이 일정한 간격으로 평평하게 깎여 있는 점, ③ 공급관이 조임볼트 우측으로 돌출되도록 본체로부터 일직선으로 연장되면서 그 끝부분 외주면에 나사산이 형성된 점, ④ 전체적으로 ‘ ’와 같은 형상과 모양을 이루는 점에서 공통된다.

나) 한편, ㉮ 이 사건 등록디자인은 본체의 윗면은 일직선이고 아랫면이 약간 만곡되어 있으나 본체 좌우측 끝부분의 외경이 공급관의 외경과 같아 조임볼트와 본체 사이에 두께의 차이로 인한 단턱이 명확히 형성되어 있는 반면, 비교대상디자인은 본체가 만곡진 형상으로 조임볼트와 본체 사이에 두께의 차이로 인한 단턱이 형성되어 있지 않고, 본체의 좌측 끝부분의 외경보다 본체의 우측 끝부분의 외경이 더 큰 점, ㉯ 이 사건 등록디자인은 본체와 배출구가 연결되는 ‘⊥’ 형상 부분이 직각을 이루고 있는 반면, 비교대상디자인은 본체와 배출구가 연결되는 ‘⊥’ 형상 부분이 완곡하게 이루어져 있는 점, ㉰ 이 사건 등록디자인은 조임볼트의 외주면이 육각너트 모양으로 빈틈없이 평평하게 깎여 있는 반면, 비교대상디자인은 조임볼트의 외주면이 타원형의 평평한 조임면이 일정한 간격을 두고 깎여 있는 점에서 차이가 있다.

C) Examining this in light of the legal principles as seen above 3.B. 1.(b)(1)(b)(1), the common point of both designs (1) through (4) is basically required to secure the function of supplying water. Thus, when determining whether both designs are similar, the importance of the design should be reduced. On the other hand, the part that can easily lead to the attention of the person who is deemed to be installed in the spoppy or the sprink, etc. is the shape with the spoppy of the spoppy, and ultimately, indicating the dominant characteristics that affect the overall aesthetic sense of both designs is the difference, e.g., the difference with the spoppy, e., the spoppy, and the spoppy design of this case, due to the difference, is likely to cause a significant difference in the overall aesthetic sense.

3) In general

Therefore, since the registered design of this case cannot be seen as similar to the publicly known comparative design before its registration, the scope of the registered design cannot be recognized.

5. Whether the challenged design falls under the scope of the right to the registered design of this case.

(a) Preparation of goods;

The registered design of this case and the product subject to the registered design of this case are related to the "heat" used to control the quantity of water supplied according to the operation of the controlling hand while connecting the water supply to the water pipe to the water pipe, singing, singinging, and turging, etc., and their use and function are the same.

(b) Preparation of shape and shape;

1) The following are prepared in comparison with drawings of the registered design of the instant case and photographs of the challenged design.

A person shall be appointed.

2) Specific determination

가) ① 이 사건 등록디자인과 확인대상디자인은 전체적인 형상과 모양이 ‘ ’와 같은 점, ② 본체와 배출구가 연결되는 부분이 이 사건 등록디자인은 ‘ ’, 확인대상디자인은 ‘ ’와 같이 본체의 중앙부분에서 위로 배출구가 연결되어 ‘⊥’ 형상을 이루고 있고, 그 부분이 직각을 이루고 있는 점, ③ 공급관, 조임볼트 및 본체가 연결되는 부분이 이 사건 등록디자인은 ‘ ‘와 같고, 확인대상디자인은 ’ ‘와 같은바, 이 사건 등록디자인의 본체의 윗면이 일직선이고 아랫면이 약간 만곡되어 있으나 본체 좌우측 끝부분의 외경이 공급관의 외경과 같고, 확인대상디자인은 본체의 외주면이 일직선이고 그 외경이 공급관의 외경과 같아 양 디자인은 조임볼트와 본체 사이에 두께의 차이로 인한 단턱이 명확히 형성되어 있는 점, ④ 양 디자인은 본체의 중앙부분에서 위로 연결된 배출구의 끝부분 외주면과 본체의 좌측 끝부분 외주면에 각각 나사산이 형성되어 있는데, 위 각 나사산의 외경이 본체의 외경과 동일한 점에서 공통된다.

B) On the other hand, the lower part of the registered design of this case, as seen in the instant design, is several strings, while the design subject to confirmation was formed in a straight line, and the early flive V of the registered design of this case is in the shape of the cryp, such as “(g) and (g)”. On the other hand, the design subject to confirmation is in the shape of the cryp, such as “(g)”, and there is a difference in that the cryp of the cryp of the cryp of the cryp, such as “,” was cut at a certain interval.

C) Examining this in light of the legal principles as seen above 3.b. 1.(b)(1)(b) as seen above, the differences in the above sub-paragraph (1) above are merely minor differences in detailed composition that can only be recognized only when goods are viewed in detail, or commercial and functional changes that can easily be easily seen by ordinary designers. Since the difference cannot be said to have a controlling feature that goes beyond the common point above, it is not obvious in the overall aesthetic sense that the difference does not bring about a significant difference, but rather, it is reasonable to view that the above common point forms a hub of main creation in both designs, and at the same time indicates a dominant feature of the entire design.

Therefore, even if there is a somewhat different difference between the challenged design and the registered design of this case due to the common point above, the overall aesthetic sense is similar to the dominant feature when comparing and observing the appearance of the design as a whole, even though there is a little difference in the detailed point.

3) In general

Therefore, the challenged design falls under the scope of the right to the registered design of this case, since the registered design of this case and its overall aesthetic sense are very similar to the registered design of this case.

6. Conclusion

Therefore, the decision of this case is legitimate, and the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-jin (Presiding Judge)