205Heo7477 Nullification of Registration (D)

Song Young-man

J. M. P. P. P. P. M.

Patent Attorney Song-dae, Counsel for the defendant-appellant

Warsaw Co., Ltd.

Busan Jin-gu

A new representative director;

Patent Attorney Lee Jae-soo, Counsel for the plaintiff-appellant

December 15, 2005

January 12, 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 July 27, 2005 on the case No. 2210 shall be revoked.

1. Basic facts

A. The name of the registered design (1) design of this case: BobIN (2) filing date of Bobin (2) / The registration date / The registration number: September 22, 1999 / the necessity of creation of the design (3) on February 2, 2001: A combination of the shape and shape of Bobin as shown in Appendix 1 (4): The defendant

B. On June 5, 1913, the Patent Gazette (patent registration number: GB191229391) concerning the improvement of combined Blick Capital published in the United Kingdom on the comparative design (1) 1 (No. 7) (No. 7) and the shape and shape as shown in attached Table 2 (2) of the comparative design (No. 8) published in Japan on August 8, 1985, the Patent Gazette (No. 60 - No. 117367) was published in the Public Utility Model Gazette (No. 2) as shown in attached Table 3, which was published in the aforesaid Utility Model Gazette (No. 90) and the public model registration number No. 2, which was published in the aforesaid Utility Model Gazette (No. 2, 3199) and the public model registration number No. 98 (No. 94, Jan. 15, 199).

C. The plaintiff filed a trial for invalidation of the registered design of this case on the grounds that the registered design of this case was publicly known prior to filing an application for comparative design or could be easily created by the shape, pattern, color, or combination thereof widely known in the Republic of Korea. The Korean Intellectual Property Tribunal deliberated as 2210 and dismissed the plaintiff's claim on July 27, 2005 (2).

(2) Although the purport of the trial decision of this case (A) is that the design of this case was published prior to the application of the registered design of this case, the registered design of this case and the comparative design of this case are common points in that the design of this case and the comparative design of this case are attached with a qui shape at both sides centered on one axis. On the other hand, there are considerable differences in the existence of saw and locked, the degree of spacker, spacker's thickness, spacker's thickness, spacker's length, spacker's length and size, etc. In comparison with the comparative design of this case, the design of this case are different from the comparative design of this case. Thus, the registered design of this case cannot be deemed as similar to the prior design of this case. (b) The applicant (the plaintiff) did not have a spacker's registered design of this case as well as the comparative design of this case, which is widely known domestically, so it is not easy to observe the shape of the design of this case.

Therefore, the claimant's assertion is without merit (the claimant is deemed to have asserted that the registered design of this case falls under Article 5 (2) of the former Design Act (amended by Act No. 7289 of Dec. 31, 2004) and the registration is null and void. The trial decision of this case is judged to be that all of the claimant's claims were registered in violation of Article 5 (1) of the former Design Act, and the judgment part of the above (b) contains any content that is irrelevant to the claimant's assertion as stated earlier.

(1) Evidence Nos. 1, 2, 3, 7, 8, 9, and the purport of the whole pleadings

2. Summary of the grounds for revocation of the trial decision asserted by the Plaintiff

A. The core composition of the registered design of this case is to attach a brub flag board formed by an ordinary brupt-type flaging in the shape of an empty axis and original flag (flge) and to form a reinforcement unit to the right flag.

All of the registered designs of this case and comparative designs 1, 2, and 1, 2 are attached to the shape of the pipe shape formed inside the middle hole, and the shape of the original plate shape is attached to the same and similar shape continuously formed depending on the external outline, and as a whole, the reinforcement stand formed at the right corner of the registered design of this case is similar in depth to each other. The reinforcement stand formed at the right corner of the registered design of this case is merely a functional and commercial alteration publicly announced by the comparative design 3. In addition, three joints of the registered design of this case are composed of three joints of the registered design of this case, but this hole is merely a functional composition formed to put (wire) into the shape of the shape or distribution, and it is not a dominant part in judging the similarity between the registered design of this case and the comparative design of this case.

Therefore, the registered design of this case is similar to the comparable design publicly notified before its application for registration, and its registration is null and void.

B. In addition, among the registered designs of this case, the shape of pipe shape attached to both parts of the pipe shape, and the shape of a brush pattern formed at the left fluor is merely a saw shape, which is already widely used in the relevant industry in Korea. Thus, the registered design of this case is a design that can be easily created by the shape, pattern, color, or combination thereof widely known prior to the filing of the application, and its registration is null and void pursuant to Article 5(2) of the Design Protection Act.

3. Determination

A. The main body of a design is to attract an aesthetic hobby to the people’s mind. Thus, in determining similarity of a design, each element constituting the design should not be prepared partially separately, but it should be determined by comparing with the whole, observing, and raising people’s mind. In addition, an objective creativity required by the Design Protection Act is not a strict originality, but a combination of an aesthetic device that gives new aesthetic impression to a device in the past and present sense, and is sufficient to the extent that it is recognized as an aesthetic value different from the previous design (see Supreme Court Decisions 95Hu1449, Jun. 28, 1996; 94Hu920, Nov. 21, 1995; 94Hu920, Nov. 21, 1995; 97Hu147, Nov. 14, 1995; 2007, etc.). In addition, in determining similarity of a design, it should be determined from the perspective of the general public’s understanding of changes in the design and its scope.

B. Although the registered design of this case is similar to the comparable design of this case (1) an open space or unexplosive design of this case is used to cut off metal or optical fibers which are similar to the comparison design of this case, there is no difference between the two sides of the registered design of this case, and there is no difference between the two sides of the registered design of this case and the outer open space design of this case, and there is no difference between the two sides of the registered design of this case and the outer open space design of this case, and there is no difference between the two sides of the registered design of this case and the outer open space design of this case, and there is no difference between the two sides of the registered design of this case and the outer open space design of this case.

(4) Ultimately, the registered design of this case is similar to any of the comparative designs, and thus, the Plaintiff’s registered design of this case is similar to the publicly known design before the application.

A. The assertion of this case is without merit.

C. Whether the registered design of this case can be easily created by the shape, pattern, color, or combination thereof of the well-known designs

Even based on all the evidence and empirical rule submitted by the Plaintiff, as alleged by the Plaintiff, the shape, shape, and shape of the brue reinforcement unit formed in the left-side franchise, among the registered designs of this case, cannot be deemed as a widely known shape or shape domestically. Thus, the Plaintiff’s assertion on February 2, 200 on different premise is without merit.

2. The Plaintiff’s claim 2. The registered design of this case can be easily created by the combination of publicly known designs. Thus, even if the registration is deemed null and void, it shall be deemed null and void.

31. Article 5(2) of the Design Protection Act, which was wholly amended by Act No. 7289, and enforced from July 1, 2005, provides that a design that could easily be created by combining designs publicly known or publicly worked by a person with ordinary knowledge in the field to which the design pertains, before an application for registration was filed, shall not be registered. However, the registered design of this case is the filing date of September 22, 199. According to Article 3 of the Addenda of the Design Protection Act, the trial and lawsuit on the registered design of this case, which was created by the application for design registration prior to the enforcement of the said Design Protection Act, shall be governed by the previous provisions. Thus, the registered design of this case shall not be applied to the registered design of this case, but to the former Design Protection Act (amended by Act No. 6413, Feb. 3, 2001; hereinafter the same shall apply) at the time of the application, since the former Design Protection Act does not have any ground to invalidate the registration by combining designs.

D. Therefore, the instant registered design does not fall under Article 5(1) and (2) of the former Design Act, and thus, the instant trial decision that concluded as above is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the trial decision 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

Sheeting type

Attached Table 1 1 1

Drawings of the registered design of this case

Gindo City/Do Magdo Magdo

The left-hand surface map of the upper right-hand surface map;

A person shall be appointed.

Attached Table 2

Compared Design 1 Drawings

A person shall be appointed.

Attached Table 3

Compared Design 2 Drawings

A person shall be appointed.

Attached Table 4

Compared Design 3 Drawings

nan

A person shall be appointed.