[1] Criteria for determining the scope of right of a registered design containing the shape and shape of an official announcement

[2] The case holding that the similarity of a registered design and a design compared thereto should be determined with an emphasis on the shape and shape of the hole and the KON, in case where the whole shape, shape, and shape of an industrial diameter test are already publicly known, and the registered design bulletin is registered as an extension photograph of an essential part, and the similarity of the registered design and the design compared thereto should be determined with an emphasis on the shape and shape of the hole and KON.

[1] A design right is granted to a combination of new shapes, shapes, and colors of a product, and even if a design registration was made by an application including the shape and shape of an open space, it cannot be granted exclusive and exclusive rights to the open space. Therefore, in determining the scope of rights of a design right, the importance of the open space area shall be evaluated low. Therefore, even if the registered design and the design compared thereto are identical or similar to each other in the open space area, if the registered design are not similar to those of the registered design, the compared design falls under the scope of rights of the registered design.

[2] The case holding that the similarity of a registered design and a design compared thereto should be determined with an emphasis on the shape and shape of the hole and the KON, in case where the whole shape, shape, and shape of an industrial diameter test are already publicly known, and the registered design bulletin is registered as an extension photograph of an essential part, and the similarity of the registered design and the design compared thereto should be determined with an emphasis on the shape and shape of the hole and KON.

[1] Article 69 of the Design Act / [2] Article 69 of the Design Act

Plaintiff (Patent Attorney Hong-soo, Counsel for the plaintiff-appellant)

Ortoopian Co., Ltd. (Patent Attorney Kim Don et al., Counsel for the defendant-appellant)

Patent Court Decision 2002Heo7162 delivered on March 7, 2003

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

1. The judgment of the court below

For the following reasons, the lower court determined that the Plaintiff’s registered design of this case (registration number omitted) and the shape and shape of the industrial landscape carried out by the Defendant (hereinafter referred to as “Defendant’s design”) constituted a similar design as a whole.

A. Industrial landscape, which is the goods of the registered design of this case, is equipment used for the purpose of preventing work process, dust, etc. from entering a snow in the industrial field. Of its constituent parts, it is necessary to freely use the public domain shape and shape that had already been implemented in the industry prior to the application of the registered design of this case, and to use it in the front part of the inner bridge, which is added to the protection-type type (the specific shape and shape are different from the little little). The regrative part required for ear in the inner bridge is narrow and the width is narrow and the front part in the width is narrow, and the shape and shape of the siren and the inner scenery formed in the reverse three-dimensional form as a substitute when seen from the narrow and narrow sides, all of the above parts in the public domain shape and shape that had already been implemented in the industry of the industry of the same case before the application of the registered design of this case. However, it cannot be concluded that all of the registered design of this case including the designated design of this case can not be determined by comparing all of the above parts with the design of this case.

B. In preparation for the design of this case and the Defendant’s design, the basic structure and shape are replaced in that both of the two chairpersons are about the inner border, and both of them are identical to the inner border, sirens, coaches, conduits, connectors, and the inner bridge elements. ② The upper part of the inner border surrounding the reverse angle, which is close to the reverse angle type where both the maternal length observed on the front side is treated in the thring, and the connect between the two sides and the two sides are facing the straight line, and the two immediately below the string are the same as the overall shape formed in order above the upper part, which is smaller than the upper part of the upper part and its lower part, and ③ the shape of the same roof installed at the same intervals of controlling the length transfer of the shape observed on the side of the upper part, ④ the shape of the tamp, the shape of the tamp, and the shape of the tamp installed as a whole, and the shape of the tamp, the shape of the tamp, the shape of the tamp installed as a whole.

C. However, the design of this case and the defendant's design of this case are: ① from the perspective of the design of this case, the shape of the design of this case and the defendant is similar to that of the interior of the design of this case, ② the shape of the design of this case, which is a shape similar to that of the interior of the design of this case, is close to the modified shape, and the shape of the defendant's design of the design of this case is similar to that of the square, and is attached to the length of the original metal to the center, and the shape of the design of this case, which is attached to the hole of the registered design of this case, is naturally attached to the bottom of the inner geme, and ② the shape of the storm for the protection attached to the KON, and the shape of the design of this case is distinguishable from the structure of the shape of the three-dimensional type, which is attached to the structure of the design of this case,

D. Considering the aforementioned circumstances, such as the purpose and use status of the industrial border, and the shape and shape of the open space among the components of the industrial border, the part that can best be seen from the users in the design of the registered design of this case and the defendant or the design of the defendant, or the part that shows the dominant characteristics of the design of this case, is observed at a fixed level, and the connect part between the upper part of the inner gate surrounding the tangs of the tang-shaped shape, and the connect part surrounding the tangle is in straight line, and the connect part of the connects with the upper part of the tang-shaped shape, and the shape formed in the lower part and the lower part of the shape, and the lower part of the shape, which are observed in the shape of the two sides of the tang-type shape, are installed at the same intervals, and four balls for length control, are attached to the upper part of the shape of the design of this case, and are almost similar to the shape of the defendant as seen earlier.

E. However, as seen earlier, there are some differences between the registered design of this case and the Defendant’s design, but from the perspective of the above differences: ① the shape and shape of the part of the elderly is located on both sides of the road border, and the difference is not easily visible in one eye if the difference is observed on the plane due to the degree of the difference, and the shape of the Nexer and its inner bridge attached thereto, which constitute the essential part of the design, are very similar when observed in terms of the difference. As such, the difference in the part of the elderly is relatively less in the overall aesthetic sense, and it is difficult to view the difference in the shape of the public road in the industry, and it is extremely difficult to view the difference in the shape of the public road in the shape of the whole, as the shape and shape added to the protective shape attached to the Nexer, which is difficult to view, as seen earlier, in light of the size and shape of the public road in the industry, it appears that the part of the public road is considerably narrow in the shape and shape of the entire area.

2. The judgment of this Court

However, we cannot accept the above judgment of the court below.

A. In determining whether a design is identical or similar to a design, it shall not be prepared partially separately for each element constituting the design, but it shall be determined by either aesthetic sense, which sees people in comparison with the whole, and even if there is a shape of an open space among the elements, it shall be determined by the flexible aesthetic sense, including that, unless it does not cause any special aesthetic sense, insofar as there is a part of an open space among the elements, it shall not be an element of a special aesthetic sense. However, even if a design right is granted by a combination of new shape, pattern, and color, and a design right is granted by an application, including the shape and shape of an open space, and even if a design is registered by an application including the shape of an open space, it is not possible to recognize exclusive and exclusive right. Therefore, even if the registered design and a design compared to the registered design are identical or similar in the publicly known part, if it is not similar to the remaining part of the registered design, it shall be deemed that the registered design right belongs to the scope of right.

B. According to the records, the shape and shape of the inner border consisting of Agyeong, sirens, jointer, KONer, KONer, and Bridges, the shape and shape of the inner border, added to the protection for the protection of the inner border, added to the front side of the inner bridge, and the shape and shape of the valley and the shape of the inner border, which are generally used in the inner industry prior to the application of the registered design of this case, should be determined by the following legal principles: (a) in determining whether the Defendant’s design of this case falls under the scope of the right of the registered design of this case, the shape and shape of the inner border, which is commonly used in the inner industry at the time of coming from the front side of the inner bridge; and (b) in determining whether the Defendant’s design of this case falls under the scope of the right of the registered design of this case, the shape and shape of the road connected to the inner border, not both of both of the designs falling under the area of the inner border; and (c) in determining whether the design of this case falls under the scope of right.

Accordingly, examining the similarity of both designs, it is reasonable to view that the difference between the two chairpersons' above alone brings about a big difference in the overall aesthetic sense, in light of the fact that the part of the center is the part that is easily visible from the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the shape and shape of the public notice

Nevertheless, the court below erred in the misunderstanding of legal principles as to the judgment of similarity of designs, and the ground of appeal pointing this out is with merit. The court below's decision is erroneous in the misunderstanding of legal principles as to the similarity of designs.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)