The judgment below is reversed, and the case is transferred to the Patent Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 5(2) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013; hereinafter the same) provides that a person with ordinary knowledge in the field to which the design pertains (hereinafter “ordinary designer”) may not obtain design registration, either by combining a design falling under paragraph (1) 1 or 2 (hereinafter “official design”), or by using a shape, pattern, color, or any combination thereof widely known in the Republic of Korea.

Meanwhile, even before a trial decision to invalidate the registration of a registered design becomes final and conclusive, if the registered design can be easily created through an open design, etc. and it is evident that the design registration will be invalidated by an invalidation trial, barring any special circumstance, a claim for prohibition of infringement or compensation for damages based on the design right constitutes an abuse of rights, and barring any special circumstance, a court in charge of a lawsuit for infringement of a design right may examine and determine whether the registered design is easily created on the premise of examining the legitimacy thereof, if there is a defense that such a claim by the owner

(see, e.g., Supreme Court en banc Decision 2010Da95390, Jan. 19, 2012). (B)

In the same purport, the court below is justified in examining and determining whether the registered design (design Registration Number F) of this case, which uses the subject goods as “C,” could be easily created by the comparable designs as stated in the judgment below.

In so doing, contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the scope of a design right and the doctrine of abuse of rights.

2. As to the grounds of appeal Nos. 2 and 3

(a) An open design, in order to ensure that an ordinary designer can easily create a design under Article 5(2) of the former Design Protection Act.