[1] Criteria for determining the similarity of designs

[2] The degree of objective creativity required by the Design Act

[3] The case holding that the objective creativity cannot be recognized as a whole as a whole due to similar differences despite partial differences

[1] Whether the design is similar or not shall be separately compared to each element comprising the design, not to separately prepare for each element, but to determine whether a person seeing the appearance as a whole feel a different aesthetic sense. Thus, if the dominant characteristics are similar, even if there are somewhat differences in the detailed aspects, the two chairpersons should be deemed similar.

[2] The objective creativity required by the Design Act is not a unique feature that is not similar to all the past or present devices. Thus, if an aesthetic device that combines a new aesthetic device on the basis of the past and present devices is recognized as having a aesthetic value different from the previous design, a design may be registered under the Design Act if the design is recognized as a whole. However, even if a part of the invention is recognized, if an aesthetic value different from the past and present devices is not recognized as a whole, it is merely a commercial and functional alteration of the publicly known device, and thus, it cannot be recognized as creative.

[3] The case holding that it is difficult to recognize the objective creativity as being easily created by a person with ordinary knowledge in the field to which the registered design belongs, because it is merely commercial and functional transformation, regardless of the partial differences in the shape of the two Speakers as to the "spout and spoutings", and such partial differences are merely mere commercial and functional transformation

[1] Article 5 (1) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) / [2] Article 5 (2) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) / [3] Article 5 (2) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990)

[1] [2] Supreme Court Decision 94Hu920 delivered on November 21, 1995 (Gong1996Sang, 60), Supreme Court Decision 95Hu873 delivered on December 22, 1995 (Gong1996Sang, 548) / [1] Supreme Court Decision 90Hu1024 delivered on June 11, 1991 (Gong1991, 1926), Supreme Court Decision 93Hu1315 delivered on June 24, 1994 (Gong194Ha, 2106), Supreme Court Decision 94Hu1497 delivered on May 9, 195 (Gong195Sang, 2118) / [2] Supreme Court Decision 90Hu19494 delivered on April 24, 1992 (Gong194, 196Hu1394 delivered on April 16, 1994)

Claimant (Patent Attorney Kimdo-ho et al., Counsel for the plaintiff-appellant)

Appellant (Patent Attorney Lower-soo et al., Counsel for the defendant-appellant)

Korean Intellectual Property Trial Office Decision 95Hun-Ba42 dated February 16, 1996

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the submission period).

1. According to the reasoning of the original trial decision, the court below determined that the registered design of this case (registration number omitted) related to the "spout and spout" registered on March 25, 1991 and the design as stated in Japan Patent Gazette No. 52-6854 prior to the application of the above registered design (hereinafter referred to as the "couting design") is inconsistent with the registered design of this case (registration number omitted) which was made public on June 7, 197, which was made public of Japan on June 7, 197. The registered design of this case is in line with the shape that can be spouted up to the upper upper end of the spout of the spout and upper end of the spout, which is connected to the upper end of the spout and upper end of the spouting part, which is clearly different from the upper end of the spouting part, which is not connected to the upper end of the spouting part.

2. However, whether a design is similar should not be separately compared to each element of the design separately, but should be determined depending on whether a person seeing person feel a different aesthetic sense by comparing and observing the appearance of the design as a whole. If the dominant characteristics are similar, even if there are some differences in detail, the two chairpersons should be deemed similar (see, e.g., Supreme Court Decisions 93Hu1315, Jun. 24, 1994; 94Hu1497, May 9, 1995). Furthermore, the objective creativity required by the Design Act is not a highly high level of creativity, i.e., a unique device that is not similar to all existing or existing, and thus, it is possible to obtain a design registration under the Design Act if it is deemed to have a different aesthetic value from the previous Speaker, but a design can not be deemed to have been modified to have been modified to the extent that it is deemed to have been partially recognized, as a whole, by deeming it to have no functional value different from the previous and present device (see, 96.1).5).

According to the record, in comparison with the cited design of this case, the two chairpersons are basically connected to the upper and lower corner of the upper corners on the basis of square, and the width of the upper and lower corners is equal, and the connect itself is several bendings to the upper and lower corners of the upper corners, and the lower part is clearly connected to the upper and lower corners of the upper corners, and the lower part is similar in terms of the dominant characteristics, such as the upper and lower part of the upper corners of the upper corners, and the upper and lower part of the upper corners are connected to the upper upper corners, and it is difficult to recognize that the upper and lower part of the upper corners of the upper corners are connected to the upper corners, without any difference between the upper and lower sidess of the upper corners.

Nevertheless, the court below did not err by misapprehending the legal principles as to the similarity of designs and determination of creativity, and by failing to exhaust all necessary deliberations, which judged that the registered design of this case is not similar to the cited design, and that it is not easy to create from the quoted design. The appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Office Appeal Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)