[1] Criteria for determining the identity of a product, which is a premise for determining whether a design is identical or similar to a design

[2] The case holding that goods expressing a registered design are identical or similar goods where a product containing the registered design is a framework for press appointment, and the cited design 1 expressed is used as a component of the Belgium consortium structure, and the quoted design 2 expressed as a component of the frame of the transport machinery

[1] In order for the Speaker to be identical or similar to the goods because it is not possible to leave the goods, and the Speaker is in a relationship between the goods and the goods, the form of the goods expressed by the Speaker shall be identical or similar. The identity of the goods shall be determined according to whether the goods can be recognized as goods of the same kind in light of the use, function, etc. of the goods.

[2] The case holding that in case where the product containing a registered design is a framework structure for press appointment, and the product containing the cited design 1 expressed in Belgium-conveniation structure and the cited design 2 expressed in Belgium-conveniation structure, the name of the product is deemed to be a product used in the component of the Belgium-conveniation structure (AFRM NANVE NAVEYR), Belgium-conveniation device or transfer machinery structure, the structure for press appointment and Belgium-conveniation is identical or similar to its use and function in that it is used as a structural component of the same machinery, etc., and thus, it constitutes an identical or similar product under social norms.

[1] Articles 5(1)3, 16(1), and 68(1)1 of the former Design Act (amended by Act No. 5354 of Aug. 22, 1997) / [2] Articles 5(1)3, 16(1), and 68(1)1 of the former Design Act (amended by Act No. 5354 of Aug. 22, 1997)

[1] Supreme Court Decision 84Hu110 delivered on May 14, 1985 (Gong1985, 845), Supreme Court Decision 86Hu84 delivered on March 24, 1987 (Gong1987, 729), Supreme Court Decision 90Hu1994 delivered on July 12, 1991 (Gong191, 2160), Supreme Court Decision 91Do612 delivered on November 26, 1991 (Gong192, 362), Supreme Court Decision 91Hu1144 delivered on April 24, 1992 (Gong192, 1724)

United Nations Dex Dex Gaza (Patent Attorney Hho-gu et al., Counsel for the defendant-appellant)

Dae Young Metal Co., Ltd.

Korean Intellectual Property Trial Office Decision 96Na289 dated December 30, 1997

The appeal shall be dismissed. The costs of appeal shall be assessed against the respondent.

We examine the grounds of appeal.

1. According to the reasoning of the court below's decision, the court below held that the registered design (registration number omitted) of this case as to "the framework of provisional appointment" and the design expressed in the third drawing of a copy of the Patent Gazette published on November 5, 191 (hereinafter the quoted 1) and the design (registration number omitted: the date of priority claim: March 23, 1990; hereinafter the quoted 2 d) as to the quoted one among the inventions described in the above published copies of the Patent Gazette on December 21, 1994, are identical to the registered design of this case (registration number omitted), and that the registered design of this case was formed in the original form without the cited 1, 2 (hereinafter the quoted hereinafter the quoted 1, 191), and that there was no error in the misapprehension of legal principles as to the cited design as a whole, and that there was no error in the misapprehension of legal principles as to the facts-finding of the design as alleged in the ground for appeal.

2. If the Speaker is unable to leave the goods, and if the Speaker intends to be identical or similar to the goods, it shall be identical or similar to the goods expressed by the Speaker. The identity of the goods shall be determined according to whether the goods can be recognized as goods of the same kind in light of the use, function, etc. of the goods (see, e.g., Supreme Court Decisions 84Hu10, May 14, 1985; 86Hu84, Mar. 24, 1987; 91Hu144, Apr. 24, 1992).

According to the records, goods expressed in the registered design of this case are the framework of appointment, and goods expressed in Belgium 1 are the Belgium structure and the cited 2 expressed in Belgium 2. The name of the goods appears to be the goods used in the framework of Belgium conditioning structure (A FRAM NAPE NAVETR), Belgium nibling equipment, or transfer machinery. Since the framework of appointment and Belgium lubling structure are used as the structural material of the same machinery, etc., their use and function are identical or similar to the same and similar in terms of social norms.

For the same purport, the lower court is justifiable to have determined that the goods expressing the registered design of this case and the cited design 1 are similar. However, as long as the lower court determined that the registered design of this case was similar, the lower court did not determine against the goods expressed the registered design of this case and the quoted design 2, the lower court did not have any influence on the result of the trial decision.

All of the grounds of appeal cannot be accepted.

3. 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 Lee Im-soo (Presiding Justice)