[1] The significance of the interested party who can request an invalidation trial on the design registration

[2] Requirements and method of determining the creativity of a design

[3] The case holding that the registration form is not creative because it is merely a commercial and functional alteration that can be easily created from the cited site

[1] The "interested party" under Article 35 (1) 1 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) refers to a person who has a direct and realistic interest in the extinguishment of the registered design, as he produces, sells, produces, and sells any goods engaging in his business as a design identical or similar to the registered design subject to a request for a nullity trial.

[2] In order to recognize the creativity of a design as a requirement for design registration, it shall be recognized that other aesthetic values are recognized as a whole by combining an aesthetic device of a designer who causes a new aesthetic sense, and whether an aesthetic value, different from the past and present, is recognized or not, not by partially comparing each element of the design, but by observing each element of the design as a whole, and determining it based on the perspective of the whole combining the two elements. Thus, if an aesthetic value, which is different from the past and present designs, is not recognized as a whole, it cannot be recognized merely because it is merely merely because it is merely a commercial and functional transformation of an publicly known design.

[3] The case holding that the registered design and the quoted design (the combination of shape and shape that combines the fingers and fingers in the Maz container of a factory site) are made as to whether the shape of the stone bows on both sides of the container bottles is in its original form, and is close to the square, and that the registered design does not have any shape or shape in its original form, while there are little differences in that there are no shapes or shapes in the mouths of the kniffs in the above original form, while there are some differences in that the kniffs and tears in the site of the quotations, but the difference above is merely a commercial and functional alteration that can be easily created from the head of the quotation if a person has ordinary knowledge in the container manufacturing field to which the registered design belongs, and therefore, the registered design is not creative, and therefore, in preparation for the cited design, there is no difference in the aesthetic values that are similar to each other in terms of the whole.

[1] Articles 35(1) and 49(1)1 and (2) (see current Article 68) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) / [2] Articles 5(1)3 and 5(2) (see current Article 5) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) / [3] Articles 5(1)3 and 5(2) (see current Article 5) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990)

[1] Supreme Court Decision 85Hu59 delivered on March 22, 1988 (Gong1988, 686), Supreme Court Decision 88Hu1519 delivered on October 10, 1989 (Gong1989, 1676), Supreme Court Decision 90Hu2287 delivered on May 14, 1991 (Gong1991, 1646), Supreme Court Decision 91Hu1441 delivered on March 31, 1992 (Gong192, 1431) / [2] [3] Supreme Court Decision 91Hu288 delivered on November 8, 191 (Gong192, 113), Supreme Court Decision 91Hu1989 delivered on April 24, 1992 (Gong1984, Nov. 24, 199)

Food Co., Ltd. (Patent Attorney Jeong Ho-hun et al., Counsel for the defendant-appellant)

Appellant (Attorney Lee Jae-chul, Counsel for defendant-appellant)

Korean Intellectual Property Office Decision 92Na293 dated April 20, 1995

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

The grounds of appeal by the attorney of the respondent shall be examined.

1. On the first ground for appeal

"Interested party" under Article 49 (1) 1 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990; hereinafter the same) refers to a person who has a direct and practical interest in the extinguishment of the registered design, as he produces, sells, produces, or sells any goods engaging in the business of himself with the same or similar design as the registered design subject to a request for a nullity trial (see Supreme Court Decision 91Hu1441, Mar. 31, 1992).

In light of the records, the claimant of this case is a person using the same kind of goods (it is inevitable to use the container because he produces and sells Mazzs) as the registered design (registration number omitted) of this case; the combination of shape and shape that combines knife and knife in the publicly announced Maz container; hereinafter the same shall apply) and the like goods (it is inevitable to use the container); the applicant filed an application for the design of Maz containers and rendered a ruling of rejection; and there is a concern that the owner of the registered design may oppose the right, so the applicant of this case is a legitimate interested person, and the decision of the court below which made such recognition and decision is just, and there is no error of misunderstanding the legal principles as to

There is no reason to discuss this issue.

2. On the second and third grounds for appeal

In order to recognize the creativity of a design as a requirement for design registration, it shall be recognized as other aesthetic values from the whole by combining an aesthetic device of a designer who gives a new aesthetic sense, and whether an aesthetic value, different from the past and present, is recognized or not, not from the comparison of part of individual elements constituting the design, but from the perspective of the whole combining each element. Thus, if an aesthetic value, which is different from the past and present designs, is not recognized as a whole from the perspective of the whole combining each element, it shall not be recognized merely because it is merely merely for the commercial and functional transformation of the publicly known design (see Supreme Court Decision 91Hu144 delivered on April 24, 1992).

According to the reasoning of the original adjudication and the record, the registered design of this case and the quoted design of this case (the design registration number omitted); the combination of shape and shape consisting of a stone to be knife and knife in a publicly known Maz container) are all in the shape of a knife in the shape of a half-dimensional; and the lid of the container is also in the shape in which the knife is a suddenly formed; Provided, That the registered design of this case is in the shape similar to the knife of a knife in both sides of containers, or is in the original form similar to the knife of a knife in the above original form, and the registered design of this case does not have any shape or shape, while there is no difference in the shape that the knife and knife in the cited design are increased at the same time (this difference is not clearly different from the record). Therefore, if it is not easily different from the registered design of this case, it can be easily admitted from the registered design of this case.

The recognition and judgment of the court below to the above purport is just, and there are no errors in the misapprehension of legal principles as to the determination of creativity and similarity of designs, incomplete deliberation, and violation of the rules of evidence. All arguments are without merit.

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 Chocheon-sung (Presiding Justice)