Whether a person who actually takes over the share of a design right has a criminal intent to infringe the design right in case where the person who actually takes over the share of the design right without registering the design right (negative)

If a person who has de facto taken over the shares of a design right voluntarily executes the design right without being registered, or if he grants an exclusive license or ordinary right to a third party with the implied consent of the person who has registered the design right, the actual co-owner or the third party cannot be deemed to have the intention of infringing the design right, regardless of the validity of the private law.

Articles 37 and 57 of the Design Act, Article 54 of the Patent Act

Defendant 1 and two others

Prosecutor

Daegu District Court Decision 81No1451 delivered on February 11, 1982

All appeals are dismissed.

We examine the prosecutor's grounds of appeal.

In the event that a design right is transferred to the share of the design right, its registration takes effect only, and if the design right is owned jointly, the joint owner is unable to grant an exclusive or non-exclusive license on the design right without the consent of the other joint owners, but if the transferee of the share of the design right voluntarily executes the design right without the registration, or if a third party executes the design right by granting the exclusive or non-exclusive license to the third party under the implied consent of the nominal owner of the design right, then the actual owner or the third party may not be deemed to have committed a crime that infringes on the design right, regardless of its legal validity.

According to the facts established by the court below, since the defendant 1 and the complainants run the sales business of direct logistics since 1971, they applied for the design registration under the name of the complainants, and continued to use the registered design and to produce and sell the student training welfare by using the registered design. around April 1976, the non-indicted 1 corporation, which was a direct company, was established and operated jointly with the same defendant and complainants prior to the establishment of the above company, and the non-indicted 1 corporation, upon the agreement between the complainants to transfer one-half shares of the above design right and execution right to the defendant 1/2, it is difficult to view that the defendant 1, who was the manufacturer and the non-indicted 3 corporation, applied for the sale of the registered design right to the non-indicted 1, the non-indicted 2, the non-indicted 1 corporation, to the non-indicted 3, the registered products products manufacturer and the non-indicted 3, the non-indicted 1's registered products products manufacturer and the non-indicted 1, the non-indicted 1's registered products products manufacturer and the non-indicted 3.

The court below's decision is just because there is no proof as to the facts charged, and there is no violation of the rules of evidence such as the theory of lawsuit, misapprehension of legal principles, or incomplete hearing. Therefore, the appeal is dismissed without merit. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju