In case where the registration of the later application is invalidated because it is similar to the later application, whether the act of the holder of the right to the later application’s registered design infringes on the design right of the earlier application’s registered design (negative with qualification)

If a person who has registered a design right runs or prepares to run a project working the registered design or a similar design in Korea without knowing that the registered design falls under the cause of invalidation before the registration of a request for nullity trial against the registered design, the person has a non-exclusive license on the exclusive license existing at the time the design right or design registration is nullified within the scope of the object of the design and project being worked or prepared (Article 51(1) of the Design Act). Thus, even if the design being implemented by another person is identical or similar to the registered design by another person, the act of working the design cannot be said to be illegal.

Articles 51(1) and 82 of the Design Act

Defendant

Prosecutor

Incheon District Court Decision 2001No2593 delivered on May 15, 2003

The appeal is dismissed.

If a person who has registered a design right runs or prepares to run a project working the registered design or a similar design in Korea without knowing that the registered design falls under the cause of invalidation before the registration of a request for nullity trial against the registered design, the person has a non-exclusive license on the exclusive license existing at the time the design right or design registration is nullified within the scope of the object of the design and project being worked or prepared (Article 51(1) of the Design Act). Thus, even if the design being worked by another person is identical or similar to the registered design by another person, the act of working the design cannot be said to be illegal.

The summary of the facts charged of this case is that the defendant manufactured and sold 5,730 sets of 450 bits of connectendes similar to the chairperson of the Hysung Fix, which is the victim corporation, on May 15, 1996, and possessed 450 bits of the remaining 450 bits and infringed the victim's design right on the ground that the defendant's act was similar to the above registered design on January 4, 200, but the defendant's act of not guilty of the registered design on October 10, 201, which is similar to the registered design on October 10, 201, which became final and conclusive by the defendant on the ground that he was not guilty of the registered design on the ground that the defendant's act was not identical to the registered design on October 10, 200, but was not identical to the registered design on the ground that the defendant's act of production and reinforcement of the registered design on the same or similar registered design on the ground that it became final and conclusive on October 25, 2001.

In light of the above legal principles and records, the court below's measures are justified, and there is no error in the misapprehension of legal principles as to infringement of design rights.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)