Method of determining the similarity of designs containing vacant parts;

In determining the same or similar of a design, each element constituting the design shall not be prepared separately, but it shall be determined according to the aesthetic sense that a person sees by observing and observing the whole and all of the elements, and even if there is a publicly known part among the elements, it shall be determined according to the food aesthetic sense, including this, unless it does not cause a special aesthetic sense.

Article 5 (1) 3 of the Design Act

Supreme Court Decision 90Hu1024 delivered on June 11, 1991 (Gong1991, 1926) Supreme Court Decision 90Hu663 Delivered on June 14, 1991 (Gong1991, 1930) Supreme Court Decision 93Hu1315 Delivered on June 24, 1994 (Gong1994Ha, 2106) (Gong195Sang, 2122)

[Defendant-Appellant] Shaki (Patent Attorney Nam-ho et al., Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 93Na1819 dated April 20, 1995

The appeal is dismissed. The costs of appeal are assessed against the applicant.

The grounds of appeal by the applicant are examined.

In determining the same or similar kind of a design, each element of the design should not be prepared separately, but it should be determined by either aesthetic sense that people feel when compared to the whole, and even if there is a publicly known part among the elements, it should be determined by the flexible aesthetic sense, including that, unless it does not cause any special aesthetic sense (see, e.g., Supreme Court Decisions 90Hu1024, Jun. 11, 1991; 90Hu663, Jun. 14, 1991; 93Hu1315, Jun. 24, 1994).

According to the reasoning of the original decision, the court below determined that the shape of the body, such as the following: (a) in comparison with the quotation published in the American Design Gazette on November 1, 1988, which was prior to the application of the main body and the main body, the two chairpersons have a little difference between the shape of the body and the shape of the original body; (b) the left-hand side of the body was formed in the stude; (c) the body body was expressed in the upper part; and (d) the body was in the lower part; and (e) the body was in the shape of the body, such as the shape of the body, the width of the upper part of the body and the upper part of the right body was wide, narrow, and narrow, and the shape of the upper part of the upper part of the upper part of the body was separated, but this degree is merely a commercial transformation; and (e) the overall shape and shape did not affect the aesthetic sense that ordinary consumers feel.

기록에 비추어 살펴보면 이 사건과 같은 재봉기에 관한 의장이 역디귿자 모양의 기본형상을 변형시키기 어려운 것에 속함은 소론과 같으나 그렇다고 하여 이 부분이 특별한 장식적 심미감을 불러일으키지 못하는 부분이라고는 할 수 없을 것이므로 이러한 부분까지도 포함하여 전체적으로 대비한 결과 두 의장이 유사하다고 판단한 원심결은 정당하고 거기에 소론과 같은 의장의 유사 여부 판단에 관한 법리오해나 심리미진 등의 위법이 있다고 할 수 없다. 소론이 들고 있는 당원의 판례들은 사안이 달라 원용하기에 적절하지 않다.

There is no reason to discuss this issue.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)