The case where the registered design on the "container for food storage" is similar to the cited design on the "food receipt case"

The case holding that the similarity of two designs should be determined depending on the type of long-term aesthetic sense, which is observed and spared as a whole, even if some of the elements of the cited design concerning "containers for food storage" and "food receipt cases" have already been used for a long time, so long as it cannot be seen as creating a special long-term aesthetic sense, the similarity of two designs should be determined, and that the registered design is similar to the extent that there is a difference between the cited design and its design aesthetic sense.

[1] Articles 5(1)3 and 68(1)1 of the Design Act

Hanco Co., Ltd. (Patent Attorney Kim Ho-ap et al., Counsel for defendant-appellee

Co., Ltd. (Patent Attorney Kim Gyeong-hee, Counsel for the defendant-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on November 30, 2002 on the case No. 2002Dang2205 shall be revoked.

1. Basic facts

[Evidences: Evidences 1 through 4, Evidence 38, and Evidence 1 and 2 of A]

A. Details of the registered design of this case

(a) Goods: Waste containers for food storage;

(2)The summary of the Speaker: the combination of the shape and shape of the "waste container for the storage of food" as shown in the annex No. 1.

(3) Date of application/registration: July 15, 2000/ April 26, 2001

(d) Registration number: No. 276817;

(5) Right holder: the plaintiff;

(b) Quotations;

(1) Quotation 1

(a) Name: Food receipt cases;

(B) The summary of the Speaker: the combination of the shape and shape of the Food Receipt Cases, such as the attached Form 2.

(C) Date of application/registration: May 28, 1999/ January 25, 200

(d) Registration number: No. 254950;

(e) Right holder: the date of the Gu;

(2) Quotation 2

As shown in the attached Form 3, a sealed container photograph, expressed in the confirmation of the fact of transactions between the defendant and the National Agricultural Cooperative Federation from June 1, 1999 to November 1, 200, as shown in the attached Form 3.

(3) Quotation 3

In Japan, the lid photographs of food packaging containers published in the product advertising articles (No. 2) of the product advertising articles (No. 2) of the daily life industry newspaper published on December 1, 1999, as shown in the annexed drawing No. 4.

C. Details of the instant trial decision

The Defendant filed a petition for a registration invalidation trial against the Plaintiff, asserting that the registration should be invalidated because the registered design of this case is extremely similar to the 1st of the quoted that was publicly worked in Korea or published in publications at home and abroad prior to the filing of the application, and that the registered design of this case can be easily created, or that it falls under Article 5(1) or Article 5(2) of the Design Act, because it is extremely similar to the 203th of the quoted that was publicly worked in Korea or published in publications, and that the registration should be invalidated, and the Korean Intellectual Property Tribunal deliberated on it as 202Da205 on November 30, 2002.

D. Summary of the grounds for the instant trial decision

(1)The chair 1 is a design publicly announced in Korea before the application for the registered design of this case is filed, and the quoted chair 2 is a design implemented in Korea prior to the application for the registered design of this case, and there is no big difference between the product actually being carried out by the defendant and the product actually carried out by the defendant. However, the quoted chair 3 is a design publicly carried out in Japan before the application for the registered design of this case is filed.

(ii)The registered design and the cited designs of this case are all goods related to food storage containers, whose use and function are the same.

(iii)The registered design of this case and the cited design 1 form two divings in the upper part of the four sides of the container, each of which combines four lids with each other, and each of the four lids combines with a lock-type lockeds in the shape of the original form, each of which is concluded with a lock-out season, and each of lock-out days has been executed with a lock-out hole, the dominant features of the overall composition are almost the same, and all of which are almost the same as six pages of both designs.

However, on the top of the top lids of the registered design of this case, the upper lids of the registered design of this case expressed the pattern near a rectangular sense, while the 1st lids of the cited 1st lids of the cited 1st lids of the cited design expressed in the shape indicating the form of waterless, it is difficult to deem that both of the designs have originality to the extent that the overall aesthetic sense of both the design is to be infringed, and thus, it cannot be recognized as an independent part of the right because the pattern of the actual pattern or the shape of the st lids of the registered design of this case has already been publicly announced by the 3st lids of the quoted design of this case. The lock lids of the registered design of this case, unlike the 1st lids of the cited design of this case, may not be deemed to have affected the overall aesthetic sense of the Speakers who were scired by visual observation, but it cannot be deemed to have affected the overall aesthetic sense of the Speaker.

(d)Therefore, the registered design of this case is similar to one of the quoted designs publicly notified in Korea before the application, and there is no newness because it falls under Article 5, paragraph 1, Item 3 of the Design Act, and its registration should be invalidated under Article 68, Paragraph 1, Item 1 of the Design Act.

2. The parties' assertion on the legitimacy of the instant trial decision

A. Grounds for revocation of the Plaintiff’s trial decision

(1) Among the composition of the instant registered design and the cited design 1, the composition and shape of the locking, locking and locking holes were already publicly announced before the application was filed in light of the evidence Nos. 5 to 32, and thus, the instant trial decision cannot be deemed as an essential part of the design, despite the fact that the said publicly announced part is deemed as the essential part of the design and the cited design 5 to 32, the instant trial decision erred by deeming the said publicly announced part as the main part of the design, and by comparing only the said publicly announced part as the main part,

(ii)The width of the similar article should be narrow, because the lock-out container has already been created more than two hundred years ago, and structurally, it is a simple form of product that is difficult to change substantially the design.

(3) The registered design of this case is composed of a shape of the lids or bean shape on the surface. On the other hand, the lids 1 forms two water-free pattern from the surface and the main body of containers. In addition, each locking part of the registered design of this case forms a hole of "melting melting melting melting meltings" between each locking part of each locking part of the registered design of this case, and there is no such hole in the cited design 1, because there is no such hole, the two chairpersons are different parts from the other parts except the publicly notified parts, and they are not completely similar to each other.

(4) The confirmation of the fact of transaction (Evidence B No. 1) submitted by the Defendant as evidence for the letter of reference 2 was prepared by the Defendant to the NAF with pictures of other goods not actually supplied to the NAF, and only the documents confirmed by the NAFF, and its content is not reliable.

B. Defendant’s assertion

(1)The registered design of this case and the cited design 1 are identical or extremely similar to each other, which form a dominant feature, such as the main body of the container and lids, lock-day, lock-lockeds and lock-gu holess, and their shapes and numbers, and thus are similar.

(2) The expression on the top lids of the registered design of this case is merely a shape of simple arrangement of well-known shape, and it is difficult to view that there is a originality to the extent that the overall aesthetic sense of the design depends on it. While the lock lids of the registered design of this case include a hole that the Plaintiff is called the “fluoring off flow of melted Amount” on the lock lids of the registered design of this case, it is nothing more than commercial and functional transformation, but it is difficult to view that it affects the overall aesthetic sense of the design as it is not well under the person’s eye, the size of which is small and narrow, and it is hard to view that it affects the overall aesthetic sense of the design.

(3) If, as the Plaintiff asserted, the locked, lock hole and lock-locks commonly included in the design of this case and the cited design of this case are already widely known designs in the domestic industry, the registered design of this case constitutes a design that can be created easily by simply combining the above publicly known designs and the well-known shape, and thus, its registration should be invalidated in accordance with Article 5(2) of the Design Act.

3. Determination on the legitimacy of the instant trial decision

A. Whether the registered design of this case and the cited design 1 are similar

(1) Criteria for determination

The similarity of a design shall be determined by whether a person who is deemed to observe and observe the overall appearance of each constituent element separately, rather than individually, causes a person to feel a different aesthetic sense. If the dominant feature is similar, it shall be deemed similar even if there is a little difference in the detailed point. Even if there is an official announcement part among the constituent elements, if the part does not cause a special aesthetic sense, it shall be determined by the flexible aesthetic sense, including the part, unless it is so, unless it causes a special aesthetic sense (Supreme Court Decision 93Hu114 delivered on November 24, 1995). It is reasonable to deem that the Speaker, after the registration date, has been put in a state where many unspecified persons recognize the contents of the design (Supreme Court Decision 9Hu200 delivered on July 27, 2001).

(2) Preparation of the registered design of this case and one cited design of this case

The registered design of this case is the design of "waste containers for storing food" and one of the quoted 1 of the quoted lids registered as the design in Korea before the application is made. The goods of both designs are identical to the container lids and principal body in which food is stored. Meanwhile, in comparison with the registered design of this case and the quoted 1 of the design of this case based on the form of such a state, the design of this case is to prepare for the shape of the design in which both the container lids are combined with the main body of the four lids, the length of which is longer than the other side, and the four lids separated from the main body of the four lids in the same form.

However, the registered design of this case is composed of the pattern of a slided shape on the front lid, while the 1st lid 1 of the cited lids forms two water-free shapes on the surface and the left and right side of the container main body, and the registered design of this case forms one hole of a width-type in addition, on the part adjacent to the container lids, separately from the lock hole, on the other hand, the lid 1 of the quoted design does not form such hole.

(3) Determination

In full view of the above common points and differences between the registered design of this case and the quoted 1, the similarity of the registered design of this case shall be determined according to a flexible aesthetic sense that the above parts cannot be seen as creating a special decorative aesthetic sense, so long as the above parts cannot be seen as having been used for a long time and publicly announced for a long time, the similarity of the registered design of this case and the quoted 1 of the quoted design of this case shall be determined, as seen above, if almost the same or similar parts are identical in the shape and shape of lock-day combined with a lid, container lid, and lock-day shape and shape combined with the main body of the container, and as long as the structure and shape of lock-project combined with the main body of the container are not considered to have been used for a long time, the registered design of this case and the quoted 1 of the cited design of this case shall be deemed to have been similar to the design of this case to the extent that the registered design of this case cannot be seen as being considerably similar to the design of this case (in addition, the shape and shape of the container of this case are similar.)

However, as seen above, there is a difference in whether a specific pattern has been formed in the part of the container lids and the main body of the container, and whether the lids and the lids have been formed in a horizontal range immediately adjacent to the container lids, but adding a certain pattern to the surface of the container lids or the main body of the container seems to be merely commercial and functional transformation of the design that can be easily created if a person with ordinary knowledge in this field does not seriously transform the shape and shape of the surface itself, unless it is a case where the lids and the main body of the container are easily modified, and there are many cases where the lids formed on the surface of the container lids are attached with a label, etc., so it is difficult to see that the whole lids and lids in both sides of the container lids have an influence on the container lids and the whole lids of the container lids are easily formed in the shape of the design, and thus it is difficult to see that there is a substantial difference between the shape of the design lids and the container.

B. Sub-committee

Therefore, the registered design of this case is similar to that of a quoted 1 published in Korea before the application, and there is no newness because it falls under Article 5 (1) 3 of the Design Act, and it is not necessary to see the remainder 2, 3 and comparison with the registered design of this case without any need to see the registered design of this case pursuant to Article 68 (1) 1 of the Design Act. Thus, the decision of this case is justified as the conclusion.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Yong-ho (Presiding Judge)