[1] In a case where a registered design does not create a new creation, and the registered design is identical or similar to a publicly notified design or a publication published prior to the filing of the application, whether the scope of the right can be denied regardless of the existence of the registration invalidation trial (affirmative)

[2] The case holding that since the basic design becomes invalid due to the invalidation of registration and the registration becomes invalid under Article 42 of the Design Act, the Speaker lost its eligibility as an object of the determination of whether the design right is infringed

[3] The case holding that the scope of a right cannot be recognized regardless of whether a registration invalidation trial has been filed on the ground that a registered design is identical or similar to the design as stated in a publication distributed prior to the filing of the application, although the registered design was not declared invalid, without a new creation

[4] The case reversing only part of the multiple concurrent crimes under the former part of Article 37 of the Criminal Code, which the court below found the defendant guilty, on the ground that there are different types of punishments

[1] If a registered design does not have a new creation, and the registered design is identical or similar to the publicly notified design or the design on a publication distributed prior to the filing of the application, the scope of the right cannot be recognized without relation to the existence of the registration invalidation trial.

[2] The case holding that since the basic design becomes invalid due to the invalidation of registration and the registration becomes invalid under Article 42 of the Design Act, the Speaker lost its eligibility as an object of the determination of whether the design right is infringed

[3] The case holding that since a registered design is not declared invalid but its form and shape are identical to a dominant feature which makes the Speaker feel deep and aesthetic sense and published in a publication published prior to the filing of the application, the registered design is not new creation, and it is extremely similar to the design published prior to the filing of the application, and the scope of the right can not be recognized regardless of whether the registration invalidation trial has been filed

[4] The case reversing only part of the multiple concurrent crimes under the former part of Article 37 of the Criminal Code, which the court below found the defendant guilty, since there are grounds for reversal of a different type of punishment concurrently

[1] Articles 5 (1), 68, and 69 of the Design Act / [2] Articles 42 and 68 of the Design Act / [3] Articles 5 (1), 68, and 69 of the Design Act / [4] Articles 37 and 38 (1) 3 of the Criminal Act, Article 391 of the Criminal Procedure Act

[1] Supreme Court Decision 90Hu2119 delivered on September 24, 1991 (Gong1991, 2615), Supreme Court Decision 93Hu1773 delivered on December 2, 1994 (Gong1995Sang, 494), Supreme Court Decision 95Hu1135 delivered on January 26, 1996 (Gong196Sang, 791), Supreme Court Decision 96Hu467 delivered on November 12, 1996 (Gong196Ha, 3583)

Defendant

Defendant

Suwon District Court Decision 97No3102 delivered on April 21, 1999

The part of the judgment of the court below concerning the violation of the Design Act shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division. The remaining appeals shall be dismissed.

1. As to the violation of the Copyright Act

On July 25, 1994, the court below affirmed the judgment of the court of first instance that found the defendant guilty by failing to exhaust all necessary deliberations by misapprehending the legal principles of the Copyright Act or failing to exhaust all necessary deliberations by misapprehending the legal principles of the judgment of the court below. The court below erred in the misapprehension of the legal principles of the judgment of the first instance, which found the defendant guilty of violating the copyright of this case by failing to exhaust all necessary deliberations or by failing to exhaust all necessary circumstances. The court below did not err in the misapprehension of the legal principles of the Copyright Act, which found the defendant guilty of violating the copyright of this case, as it included the original contents in the defendant's book by changing them as it is or partially without his consent, and by issuing and distributing approximately 500 tickets, which infringed the copyright of this case by violating the copyright of this case.

2. As to the violation of the Design Act

Based on his employment evidence, the first instance court dismissed the Defendant’s appeal on August 1994 through September 1995, the first instance court affirmed the first instance judgment convicting the Defendant of violation of the Design Act by rejecting the Defendant’s design right on October 2, 199 the summary of the crime of violation of the Patent Act by using approximately KRW 108716, Oct. 22, 1990 as the registration number No. 108716, May 3, 1991 as the registration number No. 114732, Jan. 30, 1992 as the registration number No. 114732-2, May 30, 1992; and the registration number No. 163738, May 8, 1995 as the “Korea pressure No. 17,” which is similar to the combination of the pressure, pressure, and its shape and shape with approximately KRW 500, which was in violation of the Design Act.

However, in a case where a registered design does not have a new creation, and the registered design is identical or similar to a publicly notified design or a publication published prior to the filing of the application, the scope of his/her rights cannot be recognized regardless of whether the registration invalidation trial is pending (see Supreme Court Decision 96Hu467, Nov. 12, 1996).

기록 중의 증거들에 의하니, 이 사건 등록의장들(아래에서는 순서대로 '108716호, 114732호, 114732-2호, 163768호 의장'이라고 한다) 중 114732호 의장은 피고인이 제기한 그 등록무효심판(특허심판원 96당1646호)에서 1998. 7. 20. 무효심결이 내려지고 그 심결에 대한 취소소송이 제기되었으나(특허법원 98허8137호), 그의 출원 전에 반포된 1990. 2. 5.자 '고려수지침소식'지에 게재된 "지압구"와 114732호 의장은 모두 원판의 평면에 6개의 원뿔형상의 뾰족한 돌기를 형성시킨 것을 특징으로 하고 있으며, 돌기 6개의 배열방향도 거의 같아 전체적으로 심미감을 느끼게 하는 지배적인 특징이 동일하여 양 의장이 극히 유사하다는 이유로 1998. 11. 5. 청구기각 판결이 선고되고 그 판결이 1998. 11. 26. 확정됨으로써 그 의장의 등록이 무효가 되었음을 알 수 있으니 기본의장인 114732호의 의장이 등록무효가 됨으로써 그의 유사의장인 114732-2호도 의장법 제42조에 의하여 그의 등록이 무효가 되었으므로 이들 의장은 피고인이 제조, 판매한 '대한압봉 17호'(아래에서는 '17호 의장'이라 한다)와의 유사 여부를 살펴볼 필요 없이 그 의장권 침해 여부를 판단할 대상으로서의 적격을 상실하였다 하겠다.

또한, 이 사건 등록의장들 중 108716호 및 163738호 의장은 비록 그 등록이 무효라고 선언된 바는 없으나, 그 형상 및 모양은 위 무효확정된 114732호 및 114732-2호 의장이나 그 출원 전인 1989. 9. 25. 반포된 간행물로 보이는 '압봉요법'에 게재된 "지압구"와 마찬가지로 모두 원판의 평면에 6개의 원뿔형상의 뾰족한 돌기를 형성시킨 것을 특징으로 하고 있으며, 돌기 6개의 배열방향도 거의 같아 전체적으로 심미감을 느끼게 하는 지배적인 특징이 동일하여 양 의장이 극히 유사하게 보이므로 108716호 및 163738호 의장도 신규성 있는 창작이 가미되어 있지 아니하고 그의 출원 전에 반포된 간행물에 기재된 의장과 동일·유사한 경우로서 그 등록무효심판의 유무와 관계없이 그 권리범위를 인정할 수 없다고 할 것이어서 이들 의장 역시 피고인의 17호 의장과의 유사 여부를 살펴볼 필요 없이 그 의장권 침해 여부를 판단할 대상으로서의 적격을 상실하였다고 할 것이다.

Furthermore, even if the defendant's 17 chairperson and 108716 and 16378 chairperson are compared to the defendant's 17 chairperson and 16378, these chairpersons are related to the combination of the shape and shape of the water guidelines to be attached to return using a fold tape. They are similar in that both basic elements are in the form of a majority conjecture on one side of metal plates, one of which is placed on the center part, and the rest is placed on the center part. However, since the ground pressure tool such as the registered design of this case is composed of metal plates and stones formed above, the width of the change of the design is narrow, and there is a dominant feature of the shape and shape of the metal plates and 17 strethers centered on the 17 streshing shape and 17 stresh with the center of the 17 streshing shape and 6 stresh with the upper part. Thus, the 17 streshing shape and 17 stresh with the upper part.

Nevertheless, the court below's determination and determination that the chairman of the other defendant 17 infringed the design right of the Speaker No. 108716, 114732, 114732-2 and 163738, which had different views, was erroneous in incomplete deliberation or in misunderstanding the legal principles of the Design Act, and the ground of appeal pointing this out is justified.

3. Conclusion

The violation of the Copyright Act and the violation of the Design Act are concurrent crimes under the former part of Article 37 of the Criminal Act. However, in the case where other types of punishment are concurrently imposed, the part concerning the violation of the Design Act among the judgment below is reversed, and the case is remanded to the court below. The remaining appeal by the defendant is dismissed, and it is so decided as per Disposition by the assent

Justices Shin Shin-chul (Presiding Justice)