Where a person who has produced or sold an article of a person similar to a registered design, is replaced by another design upon warning from the owner of the design right, whether the person having the design right requests a trial to confirm the scope of a patent right (affirmative)

If the claimant produces or sells the articles similar to the registered design of this case by the claimant, the court below's decision that the claimant is an interested party to the confirmation of the scope of rights as to the design of this case is justified, since it cannot be said that there is no possibility to use the future design, unless there are special circumstances, even if he produces or sells the articles such as the Speaker from the date of receiving a warning from the claimant, even if he produces or sells the articles such as the Speaker.

Article 49 of the former Design Act (amended by Act No. 4208 of January 13, 1990)

Attorney Jeong-soo et al., Counsel for the plaintiff-appellant

Attorney Cho Chang-ok et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 88 No. 11 dated August 31, 1989

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

With respect to No. 1:

Even though the respondent has produced and sold the "inter-traps" like the Speaker of the No. 2 (B) theory from April 19, 1987 upon receipt of the claimant for adjudgments from the claimant for adjudgments, unless there are special circumstances, it cannot be said that there is no possibility for the claimant to use them in the future. Thus, the judgment of the court below which held the claimant as an interested party to the scope of a right to the Speakers of the No. 3 (A) as an interested party is just and there is no ground to criticize the judgment of the court below from the opposite position.

With respect to the second ground:

In light of the records, the Speaker of the court below's reasoning that (a) although there is a partial difference from the registered design of this case, it cannot be viewed that the two design is similar, and cannot be viewed as a difference to the extent that the overall aesthetic sense is different, is acceptable, and there is no error in violation of the judgment criteria as to the similarity of designs.

In addition, the record also shows that Article 68,154 of the registered design of this case cannot obtain a design registration in violation of Articles 2 and 5 of the Design Act (amended by Act No. 4208 of Jan. 13, 1990), and it is not recognized that it constitutes grounds for invalidation of a design registration, and therefore, there is no illegality in violation of the legal principles as to the requirements for the registration of a design in the original trial decision, and the (A) design of this case is publicly announced and commonly used before the application of the registered design of this case and is produced and sold by the respondent and does not affect the right of the registered design of this case. There is no material to find that there is no violation of the rules of evidence in the fact-finding by the court below. Therefore, all

With respect to the third point:

As seen above, the court below did not err in the rules of evidence in finding facts, and there was no error of law in the judgment of the court below that the design of this case is similar to the registered design of this case, and there was no error of law in the judgment of the court below that there was no error of law in the determination of the court below as to the similarity of the design in the judgment that the design of this case belongs to the scope of the right of the registered design of this case. Thus, the court below did not err in the misapprehension of legal principles as to the determination of similarity of the design in the judgment that the design of this case belongs to the scope of the right of the registered design of this case, and there was no error of incomplete deliberation or lack of reason or omission of judgment because the court below did not explain the shape, shape, or function of the design's parts in preparation for one-day in the process of determining the similarity of the

The issue is not reasonable because it criticizes the original adjudication from an independent point of view or on some facts that the court below did not recognize.

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 Kim Young-ju (Presiding Justice)