Plaintiff (Patent & Co., Ltd., Attorney Lee Young-chul, Counsel for plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

August 17, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on May 4, 2012 on the case No. 2011 Won5378 shall be revoked.

1. Basic facts

A. Application design of this case

(1) Date/application number: December 30, 2010 ( omitted)

2) Goods subject to design: mobile phone cases;

3) Explanation of the design: 1. The design is 1. of synthetic resin and fiber material. 2. The design is supported by the slope of a mobile phone as planned in 1.1 of the drawing. 3. The inside the ear-shaped of the earth and sand formed over the upper part of the design may be luminous off so that light can be emitted at the time of receiving the telephone or message, and the ear-shaped of the earphone can be cut off. 4. The part that the design is intended to be registered as a partial design other than the part of the main body in color among the drawings of the product.

4) The main point of the design creation: The combination of the shape and shape of the mobile phone case with the cell phone application of the design creation is the main point of the design creation contents.

5) Drawings: as shown in [Attachment].

6) Applicant: Plaintiff

B. Details of the instant trial decision

1) On July 8, 2011, the examiner of the Korean Intellectual Property Office rendered a decision to refuse registration on the ground that the design of the instant case was inconsistent with Article 11(1) of the Design Protection Act because the patent applicant expressed two or more shapes, shapes, colors, or any combination thereof in one application.

2) On August 1, 2011, the Plaintiff filed a petition for a trial against the foregoing decision of refusal. The Korean Intellectual Property Trial and Appeal Board dismissed the Plaintiff’s petition for a trial on the ground that the design in the instant case is a partial design, and the design in the instant case filed two physically separated forms without the form of unity or functional uniformity, and thus, contravenes Article 11(1) of the Design Protection Act, which provides that one application for a design registration may be filed for each design.

2. Whether the pending design violates Article 11 (1) of the Design Protection Act.

A. Relevant laws and legal principles

According to Article 2 subparag. 1 of the Design Protection Act, the term “design” means the shape, pattern, or color of an article, or a combination thereof, which may cause an aesthetic impression through the view of time, and includes part of the article as well. Therefore, even a design concerning a part of an article, which cannot be traded independently (hereinafter “sub-design”), constitutes a design under the Design Protection Act.

On the other hand, Article 11 (1) of the same Act provides that "an application for design registration shall be filed for each design," and a design subject to one application for design registration shall be one design, and no more than two designs shall be filed. Thus, a single application for design registration concerning partial designs shall be filed only for one design concerning part of a product.

However, since a design is a shape, pattern, or color of a product or a combination thereof, which may cause an aesthetic sense in time. Thus, even if one application for registration of a design for at least two parts physically separated among one product was filed, if the physically separated parts physically bring about the form, unity, or functional unity and bring about an overall aesthetic sense as a whole, the design may be registered as “one design” under Article 11(1) of the Design Protection Act.

B. Determination

In light of the above legal principles, as seen above, the patent application design of this case is a design for the part other than the part of the main body expressed in color as seen in the letter "", i.e., the part design for which protection is applied only for the part other than the part of the main body, i.e., the upper part of the goods (on-phone cases) and the part for which protection is applied for only the part 2 or more parts physically separated from one of the goods. Thus, the design of this case can be registered as a design only in a case where the physically separated parts bring about the form unity or functional unity by mutual relation, and cause a comprehensive heart as a whole.

However, the upper part of the pending design in this case can easily be seen as the ear shape of the earth (the above part is also indicated in the design application for the design of this case). However, the lower part 2 Nos. 11-3 [refer to 3. of the design], and the lower part’s “” merely embling the body of the body, and embling the body of the body, it is difficult to find any relationship with the above upper part. Furthermore, the design application for the design of this case cannot be seen as lumbs formed at the upper part of the design of this case, in the application for design of this case, that “the ear structure of the body of the earth formed at the upper part of the design of this case can be luminous in a light to emit the light at the time of receiving the phone or message, and the part of the application for design of this case can be seen as lumbsing the upper part with the function of the phone (the above part can not be seen as see the upper part as 3rd or upper part of the body’s function.”

Therefore, even though the pending design of this case is a design for two or more parts physically separated from one product, the parts physically separated as above are not in the form, integrity, or functional integrity, and thus, the entire design does not cause an in-depth examination as a whole.

On the other hand, the plaintiff asserts that the part " "" of the application design of this case is in the shape of mos, and that the above part " " is in the shape of mos, which is in the shape of mos, and is created to be in the shape of mos as a whole together with the cell phone insertinger (the part treated as mosing point part) corresponding to the body part of the mos, and that the whole image of one completed part is expressed, and thus, it has the unity as a design.

However, whether the physical separation in the partial design brings about the form unity or functional integration of the goods shall be determined objectively by observing and determining the whole shape combined with each part of the goods, and it cannot be determined on the basis of the subjective creative hair of the creator of the design. Considering the size, form, relationship with other parts as seen earlier, it is difficult to recognize that the part “” in the application design of this case was in the shape of kis unless there is a separate explanation as to the creative reproduction hub (i.e., “the left side” of the design of this case, even if the design of this case is the drawing of the application design of this case, it is not easy for the Plaintiff to recognize the part above in the application design of this case as sticking with the part of the body body of the body of the body of the body of the body of the case which connects each of the above parts, and therefore, it is not easy for the Plaintiff to accept the Plaintiff’s assertion.

C. Sub-decision

Ultimately, the pending design is in violation of Article 11(1) of the Design Protection Act, which provides that a design subject to a single application for design registration shall be a single design, since the physically separated parts are not causing a comprehensive aesthetic sense as a whole.

3. Conclusion

Therefore, the design of this case cannot be registered because it violates Article 11(1) of the Design Protection Act. The trial decision of this case is legitimate in accordance with this conclusion. The plaintiff's claim seeking revocation is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Dolo film (Presiding Judge) Kim Il-young