[1] The case holding that in comparison with the comparative design, the elements of the registered design “,” “,” the registered design “,” the name of which is “,” should be regarded as one of the whole, not limited to the portion with a clamping knife, but also to the part with a clamping knife that is systematically combined

[2] The case holding that a person with ordinary knowledge in the field to which the design belongs cannot be deemed to have easily created the registered design " "," with the name "," by combining the comparative design 1 " and the comparative design 2 " "

[1] Articles 5(2) and 43 of the Design Protection Act / [2] Articles 5(2) and 43 of the Design Protection Act

Plaintiff (Patent Attorney Ansan-ro, Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Kim Do-ho, Counsel for defendant-appellant)

Patent Court Decision 2010Heo2735 Decided September 1, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. In light of the record, although the registered design of this case (registration No. 483117) stated the name of the product subject to the registered design in the official bulletin as “hump for clamping,” the entire product, which is systematically combined with clamp body body and loss in light of the use, composition, transaction circumstances, etc. of the product, shall be deemed as one product, and the contents and drawings as indicated in the description column of the design, also have a whole shape combining clamp body and loss, shall not be limited to the clampum loss among them.

(1) On the premise of the aforementioned determination, in comparison with “the registered design of this case” and “the comparative design 1” and “the comparative design 2” as indicated in the judgment of the court below, the body body part of the comparative design as indicated in the judgment of the court below, excluding fingers, is not only the publicly known shape, but also the comparative design 1 as described in the registered design bulletin.

(2) However, in light of the overall shape of the part of the design, the registered design of this case is in the shape of a triarched square, which is written in the shape of the tride, while the comparative design 1 takes the shape of a tride, such as tride shape, while the comparative design 2 takes the shape of a tride type, which is the combination with the body of tride, and the comparative design 2 takes the shape of a tride type. In addition, the comparative design 1 does not form a tride, while the comparative design 2 does not form a tride, and the comparative design 2 forms a tride pattern by the method of cutting the tri-dimensional shape from the outer side to the inner side. In addition, the tride of the registered design of this case is formed in both sides of the combined body of tride, which cannot be seen as the comparative design at all.

As above, the registered design of this case and the registered design 1 and 2 are relatively different in terms of the overall shape, circulation, and shape of a luculous pole shape formed in both sides of the combination with body body, etc. Accordingly, both sides of the design cannot be deemed as a commercial and functional alteration because the aesthetic value differs from the aesthetic value as a whole, and it cannot be deemed as a mere commercial and functional alteration. Since there are no materials to regard the registered design of this case as a luculous creative method or expression method in the field to which the design belongs, it is difficult to view that the registered design of this case can be easily created by a person with ordinary knowledge in the field to which the design pertains by combining the comparative design.

2. Although the court below erred in comparison with the comparative design only with the clamping off part of the registered design of this case, it is just in its conclusion that the registered design of this case cannot be easily created by the combination of comparative designs. Thus, it did not err in the misapprehension of legal principles as to the determination of creative utility of the design which affected the conclusion of the judgment, as otherwise alleged in the ground of appeal.

3. 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 on the bench.

Justices Lee Hong-hoon (Presiding Justice)