206Heo1636 Nullification of Registration (D)

[Defendant-Appellee]

Mayang-gu Soyang-gu

Representative Director;

Patent Attorney Lee Young-young, Counsel for the defendant-appellant

White Co., Ltd.

Seongbuk-gu, Sungnam-gu

Representative Director;

Patent Attorney Kim Nam-hwan, Counsel for the plaintiff-appellant

June 8, 2006

June 22, 2006

1. The plaintiff's claim is dismissed.

2. The litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on January 26, 2006 on the case No. 2551 of 2005 shall be revoked.

1. Basic facts

A. The registered design of this case

(1) Name: Water reservoiring unit.

(2) Date of application / Date of registration / Number of registration: Date of December 23, 2004 / Date of creation of a design (No. 389652, Aug. 10, 2005) / Point of creation of a design: combination of the shape and shape of a unit of water, which is the same as that of drawing 1 attached hereto.

(5) Design right-holder: Defendant

(b) Compared designs (1) 1 (No. 7 No. 1, 2)

(1) Design name: A water tank receipt machine.

(2) Date of application/registration date/registration number:

(5) An owner of a design right: A non-permanent design (2) subject to comparison. 2 (No. 8 No. 1, 2)

(1) Design name: A water reservoir bed with a water reservoir.

(2) Date of application/registration date/registration number: / February 1, 2005/ February 1, 2005/Sgd. 374183: The combination of the shape and shape of beds with food tools, such as drawing 2. (2) of the attached Form No. 2. 3

(4) Design explanation: Materials that are made of metal materials and are used same as the degree of use.

(5) An owner of a design right: Defendant (3) (Evidence A No. 13-1, 2)

(1) Design name: A water tank receipt machine.

(2) Date of application/registration date/registration number: The starting point of design creation No. 360512 of Oct. 22, 2004/ Jul. 8, 2005/ No. 360512 of Jul. 8, 2005: combination of the shape and shape of a water storage system, such as drawing No. 2. 3 of the attached drawing. 2. (3) The description of design: The material is metal materials, and it is used to seal and support the quantity of water, salted salted salted salt, or gas stored goods.

(5) An owner of a design right: A non-permanent design (4) subject to comparison (No. A No. 14-1, 2)

(1) Design name: Food for equipment.

(2) Date of application / Date of registration / Number of registration:

(5) An owner of a design right: a non-permanent design (5) subject to comparison (No. A. 15)

(1) Design name: A water reservoir bed with a water reservoir.

(2) Date of application / Date of registration / Number of registrations: / April 2, 2005 / April 2, 2005 / The required point for the creation of a design (No. 378920): The combination of the shape and shape of a locker for eating or using food, such as drawing 2. (5) in attached Form 2. (5)

(4) Design explanation: Materials that are made of metal materials and are used same as the degree of use.

⑤ The owner of the design right: Defendant C. (1) The Plaintiff filed a petition for a trial seeking invalidation of the registered design of this case on the ground that the registered design of this case was the same as or similar to the comparable design 1 publicly known and publicly used prior to the filing of the petition, and the Intellectual Property Tribunal deliberated on it as 2005Da2551 and dismissed the said petition for trial on January 26, 2006 (2). (2) The summary of the trial decision of this case was the subject of the trial decision of this case.

The registered design of this case and the comparative design 1 are different in terms of two supporting groups and knobs formed on the body part of the body part, which are the most important part to attract human attention, and from one another formed on the bottom of the body part. Due to these differences, the registered design of this case in question in terms of “drick and strawing,” while the comparative design 1 in terms of 's direct and solid sense, the two designs are not similar because the aesthetic sense, which is drawn to this view, are different.

【Evidence Nos. 1, 5-1, 2, 7-2, 8-1, 2, 13-1, 2, 14-1, 2, 14-2, 15, and the purport of the whole pleadings

2. The summary of grounds for revocation of the Plaintiff’s trial decision

A. The registered design of this case and the comparative design 1 are similar to the design of this case, in that the two support elements (1), the body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body body.

B. The registered design of this case is identical or similar to the part of the support group of the comparative design 3, and the registered design of this case is identical or similar to the part of the comparative design 3, and thus its registration is null and void as it falls under Article 5(3) of the former Design Act.

C. The registered design of this case and the registered design of this case filed by the Defendant are similar to the registered design of this case and the registered design of this case filed by the Defendant, which are the same as two supporting groups and knobs formed on the body part and the bottom part, and mutually similar designs. Since the registered design of this case should be registered as a similar design of 2 similar designs, the registered design of this case filed by the Defendant pursuant to Article 7(1) of the former Design Act, it should be invalidated pursuant to Articles 68(1)1 and 7(1) of the former Design Act.

3. Determination

A. According to the statements in Gap evidence 7-2, Gap evidence 8-2, Eul evidence 13-2, Gap evidence 14-2, and Gap evidence 15 at the time of the announcement of the comparative design, the comparative design 1 was applied on February 21, 2004 and published on October 21, 2004. The comparative design 4 was applied on December 4, 2003 and published on August 23, 2004, and published on a publication published in the Republic of Korea before December 23, 2004, and the comparative design 2 was applied on June 30, 2004 and published on March 11, 2005, and the comparative design 3 was registered on March 25, 2005 and published on October 25, 2004.

16. Although the application was filed on April 18, 2005 and was published on April 18, 2005 and the application was filed prior to the filing date of the registered design of this case, the fact that the registration was made

According to the above facts, since the comparison design 1 and 4 are published on a publication already distributed in Korea prior to the application of the registered design of this case, it can be considered as the object of preparation to determine whether there is grounds for invalidation under Article 5(1) and (2) of the former Design Act.

On the other hand, the comparative design 2, 3, and 5 filed an application prior to the application for the registered design of this case, but it cannot be deemed that the registered design of this case was published or published in the published publication due to the lack of the publication of the registration, and thus, it cannot be deemed as an object of preparation to determine whether there exists grounds for invalidation under Article 5(1) and (2) of the former Design Act. However, since the registered design of this case was filed before the filing date of the registered design of this case and then the registration is published after the filing date, it can be deemed as an object of preparation to determine whether there is grounds for invalidation under Article 5(3) of the former Design Act. However, the plaintiff is only asserting that the registered design of this case falls under Article 5(3)

B. Criteria to determine whether the registered design of this case and the comparative design are identical or similar (1)

In determining the similarity of a design, it shall be determined not by partially separating each element of the design, but by whether the impression and impression that can be drawn to the people who compare, observe, and see the whole design as a whole is similar. In this case, from the perspective of whether a person who sees a design is aware of the most easily leading part of the design as an important part, and there is a difference in the aesthetic sense of ordinary consumers by observing it, the similarity shall be determined. The similarity of a design shall be relatively narrow in the scope of similarity of a design (see Supreme Court Decision 96Hu2418, Oct. 14, 1997, etc.).

The registered design of this case is related to “A,” the comparative design 1 through 3, and 5 also to “water storage frame,” and “water storage unit,” and all of the comparative designs are used inside as a water storage unit or a water collection framework containing water storage, spokes, or kitchen products, and the comparative design 4 is related to “equipment storage unit” and is used as an indoor decoration, book, or container, and is used as an indoor decoration, book, or container, and is used for food and has indoor decoration effect. The design is used as an indoor decoration, book, or container, and is used as an indoor decoration for food, and all of the designs are used as a storage framework or storage framework for water storage, and its use and function are the same or similar goods.

(3) Important parts of the registered design of this case

In light of the fact that the design of this case and the comparative design of this case are used as a water tank or a water storage frame, their body body body body body body body body body body body part, supporter and knife part to support the body body part, and the shape and shape of the support unit and knife part to support them are an important part to indicate the aesthetic characteristics of the design as a part to lead people's attention. Meanwhile, according to the evidence Nos. 9-1, 4 through 13, and evidence Nos. 10-3, the body body composed of two or three parts of the water tank and the receipt frame, and to support it, the body body composed of two or three parts of the water tank, etc., and the body body composed of other parts can be recognized as having many registered facts, and the body body body of this case can be seen as a relatively similar part to the body body of the design of this case. Therefore, it can not be seen as a change in its shape.

(4) Compared with the comparative design, the characteristics of the registered design of this case show well-known characteristics of the registered design of this case. The characteristic composition of the design of this case consists of two parts with the same diameter in the upper part, and two parts of the lower part in the body formed at narrow intervals (hereinafter referred to as "Composition 1"), and the support cost of the side in which the body part is knick among two support groups supported by two support groups with the body part, and the latter part is displayed on the outside side of the upper part and the latter part is 90 degrees each with the outer side (hereinafter referred to as "Composition 2), and the latter part is 8 degrees each with the upper part (hereinafter referred to as "the upper part") with the shape of 5 degrees each with the upper part (hereinafter referred to as "the upper part"), and the latter part is 8 degrees each with the upper part (hereinafter referred to as "the upper part") with the shape of 4 degrees each with the upper part.

In comparison with the comparative design 1, the body part consisting of two parts in the upper part of the design of this case, which clearly indicates the characteristics of the comparative design 1. The body part consisting of two parts in the lower part, and two parts in the lower part, which consist of two parts in the narrow range of two parts, is identical to the registered design of this case. However, the hand part, from the end of the support unit to the lower part, is cut off in a straight line to the lower part of the body and 30 degrees respectively, is cut off from the lower part to the lower part of the body, and the support part on the opposite side is cut off from the lower part to the lower part at the lower part. The part in the support unit is 3 to the lower part of the lower part, and is cut off from the lower part to the lower part to the lower part, and is very small, to the lower part to the lower part to the lower part. The composition of the registered design of this case, and the composition of the registered design of this case, and the difference between the registered design of this case and the registered design of this case.

Therefore, the two designs are not similar because they cause a person who is deemed to have different scam different from the above differences, and thus, they are not similar because they cause different scam different scams. (c) compared to the comparative design 2.

In comparison with the comparative design 2, private roads, which clearly show the characteristics of the comparative design, are the same. Although the composition of the registered design of this case is almost the same as the two or five, the original design of this case is cut off in the middle part, the body of the upper part is combined with the absence of the shape of the upper part, and is connected with the two support from the lower part of the lower part, and the lower part is in the structure connected with the lower part of the lower part within the lower part’s original body. In addition, it is different from the composition of the registered design of this case. In addition, even if the body of the lower part, which is formed into the original body, is relatively narrow, the above difference is difficult, and both designs are different from each other, and thus, it is not similar.

(D) Preparation with 3 comparable designs

In comparison with the comparative design 3, a letter of intent indicating the characteristics of the comparative design is the same as a letter of intent indicating the characteristics of the comparative design. There are some same parts in that there are two double support points, but there are two parts, the body part, the body part, and the body part, one side and two parts, one side of the upper part and the lower part, and two support cost are parallelly obstructed within the lower part, and one side of the two support group, and one part, one side is displayed outside, and the shape of the registered design of this case is different from the composition of the registered design of this case, but the shape of the two support group is formed from the two parts, and the two support group is plucked out from the last part of the two support group to the outside, and there is no difference between the registered design of this case, and there is no difference between the two designs.

(e) Preparation with comparable designs 4

In comparison with the comparative design 4, private attempts indicating the characteristics of the comparative design are the same. Among the two supporting groups, the support team of the side which does not have any knife among the two supporting groups is displayed on the outer side of the upper two parts, and is similar to the composition of the registered design of this case, and the body part was composed of three round of the two parts, which are identical to the registered design of this case. However, although the direct diameter of the upper upper part is larger than the size of the upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's 30 degrees from the upper part's upper part's upper part's upper part's upper part's upper part's 30 degrees from the upper part's upper part's upper part's upper part's body, the composition of the registered design of this case, ② it is different from the composition of the registered design of this case, and there is no difference between them.

(f) Preparation with comparable designs 5

In comparison with the comparative design 5, it is the same City/Do with the characteristics of the comparative design 5. However, although the registered design of this case is identical to 3, 5, the body part consists of 2, the body part consisting of 2, the body part consisting of 1, the body part consisting of 2, the body part consisting of 2, the small length gate and 2, and the lower part is connected to the large length gate. On the opposite side of the lower part, 1, the two support unit are not double support unit, but 2, the support unit of the upper part and the lower part are separated from the lower part, and the part is not connected with the support unit in that there is a difference between the two support unit and the lower part and the lower part.

As a result, both designs are not similar because they allow a person who sees designs to be different in depths.

(5) The registered design of this case is not identical or similar to any of the comparative designs.

C. Whether the registered design of this case falls under Article 5(1) and (2) of the former Design Act (1) as seen earlier, the registered design of this case does not identical or similar to any of the comparable designs 1 and 4 that were publicly known prior to the filing of the application. Thus, the registered design of this case does not constitute grounds for invalidation falling under Article 5(1) of the former Design Act. (2) Whether the registered design of this case falls under Article 5(2) of the former Design Act (whether the registered design of this case can be created easily by means of widely known shape, etc.)

The Plaintiff asserts that the registered design of this case can be created easily by combining publicly known designs, and thus the registration is null and void. However, Article 5(2) of the Design Protection Act, which was completely amended by Act No. 7289, Dec. 31, 2004, effective from July 1, 2005, provides that a design that could easily be created by combining a design publicly known or publicly worked by a person with ordinary knowledge in the art to which the design pertains, may not be registered, but the registered design of this case is the filing date of the application.

12. 23. Article 3 of the Addenda of the Design Protection Act provides that the previous provisions apply to the trial, lawsuit, etc. on the registered design of this case, which was created by the application filed prior to the enforcement of the said Design Protection Act. Thus, the former Design Protection Act is not the aforementioned Design Protection Act, but the former Design Act shall apply to the registered design of this case at the time of the application. Since the former Design Act does not provide that the registration of a design easily created by the combination of a publicly known design shall be invalidated, the Plaintiff’s above assertion is without merit.

The Plaintiff’s assertion that the registered design of this case can be easily created by the shape, pattern, color, or combination thereof widely known in the Republic of Korea. However, in light of the composition of the registered design of this case (2) through (5) the shape or pattern widely known in the Republic of Korea, it is difficult to recognize the Plaintiff’s assertion by only the descriptions of the evidence No. 9-1 through No. 15, No. 10-1 through No. 9, No. 11, and No. 12, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s assertion is without merit.

D. Article 5(3) of the former Design Act provides that the design of this case can not be registered in the case where a design for which an application for design registration was filed is identical or similar to a part of the design indicated in a drawing, photograph, or sample attached to another application for design registration that was filed before and laid open or published after the filing date of the application for design registration. The above provision is a provision newly established on February 3, 2001. After the application for a design for an earlier application was filed and published in the Design Gazette, the two designs cannot be deemed similar, and thus, the application for a design of this case becomes complicated between rights and duties as a result of which it is impossible to refuse the application of Article 5(1) or 16(1) of the former Design Act, and if the design of this case is partially identical or similar to the design of an earlier application after the filing date of the earlier application, the application can only be deemed to have been partially identical or similar to the design for which an earlier application was filed after the filing date of the earlier application to some extent that the earlier application is not identical or similar to the design.

In the instant case, the registered design of this case was not a design for a part of the comparable design 3, but a design for a product identical to the comparable design 3, which is not a design for an earlier application, and thus, the application of Article 16(1) of the former Design Act is merely problematic, and as seen earlier, since the entire registered design of this case cannot be deemed identical or similar to part of the comparable design 3, as seen earlier (the circumstance that part of the registered design of this case is similar to part of the comparable design 3, which is an earlier application, does not meet the requirement to determine whether to apply the above provision). Article 5(3) of the former Design Act is not applicable, and the Plaintiff’s assertion that the registered design of this case was invalid under Article 5(3) of the former Design Act, because the Plaintiff was the same as the applicant of the comparative design 2,5, and the applicant of the registered design of this case was the same as the applicant of the comparative design 2, and Article 5(3) of the former Design Act does not differ from the registered design of this case.

Even if the Plaintiff asserted that the registered design of this case was invalid under Article 16(1) of the former Design Act due to the comparative design 3, the Plaintiff’s assertion that the registered design of this case was invalid under Article 16(1) of the former Design Act (as the applicant is the same as the registered design of this case, Articles 16(1) of the former Design Act cannot be asserted on the ground of Articles 2 and 5 of the comparative design 2 and 5). As seen earlier, as seen earlier, the registered design of this case is not identical or similar

E. As seen earlier, whether the registered design of this case constitutes Article 7(1) of the former Design Act is identical to that of the Defendant and the owner of the design right does not identical or similar to the same comparable design 2. Thus, the Plaintiff’s assertion on February 3, 200 premised on the premise that the registered design of this case is able to obtain design registration only by similar design 2 similar to the comparable design 2 as the design 2.

F. Sub-decision

Therefore, since the registered design of this case does not have any grounds for invalidation as asserted by the Plaintiff, the trial decision of this case, which concluded as above, is justifiable.

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.

Chief Justice Choi Sung-sung

Mack-on vessel

Kim J. Kim J.

Attached Form 1. The registered design of this case

Gindo Mado Do Maddo Maddo Maddo

Sheet map of the right side surface map;

A person shall be appointed.

Attached Drawings 2. Compared Designs

(1) Compared design 1

Gindo City/Do Madondo Madondo

Ground surface map of the left-hand surface map;

HO

1 (Stop photographs of Use of Drawings for Drawings)

(2) Compared design 2

Gindo City/Do Madondo Madondo

A person shall be appointed.

Ground surface map of the left-hand surface map;

Reference even for low face value (the level of use)

(3) Compared design 3

Gindo City/Do Madondo Madondo

Ground surface map of the left-hand surface map;

A person shall be appointed.

1 (Stop photographs of Use of Drawings for Drawings)

(4) Compared design 4

Gindo City/Do, Magdo-si Magdo-do

lo

Ground surface map of the left-hand surface map;

Reference also 1 Reference also 2

(5) Compared design 5

Gindo City/Do Madondo Madondo

A person shall be appointed.

Ground surface map of the left-hand surface map;

Reference map 1 (Use-Based Dimensional Degree)