[1] The criteria for determining similarity of designs and whether the product subject to comparison designs is similar in cases where a change in the form naturally occurs due to the use of the design due to its function or nature (affirmative)

[2] The case holding that the judgment below erred in the misapprehension of legal principles on the ground that although the registered design “,” “,” “,” “,” “,” and “” are similar to a dominant feature, and there are somewhat differences in the shape and shape of a pressure tag, such differences cannot be deemed as a part creating new aesthetic values because they constitute a transformation that can normally take place, and thus, the core value of both designs cannot be deemed to vary, and thus, the court below erred in the misapprehension of legal principles on the contrary

[1] Whether the design is similar or not shall be determined by whether a person who observess the appearance of the design as a whole causes different aesthetic sense or not, rather than separately comparing each element constituting the design separately. If the controlling characteristics are similar, it shall be deemed similar even if there is a little difference in detailed aspects. Meanwhile, if the product subject to the compared design has a change of form naturally by using its function or characteristic, the similarity shall be determined by considering such change of form as a whole.

[2] The case holding that the judgment below erred in the misapprehension of legal principles, inasmuch as the registered design “,” “,” “,” “,” “,” and “,” are similar to a dominant feature, and there are somewhat differences in the shape and shape of a pressure tag, but such differences cannot be deemed as a part that created new aesthetic values because they constitute a transformation that can normally take place, and thus, the core value of both designs cannot be deemed to vary, and thus, the judgment below erred in the misapprehension of legal principles

[1] Article 5 (1) of the Design Protection Act / [2] Article 5 (1) of the Design Protection Act

[1] Supreme Court Decision 97Hu3586 delivered on October 8, 1999 (Gong1999Ha, 2332)

Plaintiff (Patent Attorney AIP-Related Patent Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Tae-tae et al., Counsel for the defendant-appellant)

Patent Court Decision 2009Heo4131 Decided October 28, 2009

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

The similarity of a design shall be determined not separately from each element comprising the design, but depending on whether a person in charge of observation and observation of the appearance of the design as a whole causes different aesthetic sense. If the controlling characteristics are similar, it shall be deemed similar even if there is a little difference in detail. Meanwhile, in a case where the product subject to comparison design changes naturally due to use due to its function or nature, its similarity shall be determined as a whole by taking into account such changes in the form (see Supreme Court Decision 97Hu3586 delivered on October 8, 199).

According to the above legal principles and records, since the design of this case is frequently displayed in the shape of the 2nd design subject to comparison with the design of this case, focusing on the 0th century, the overall shape and shape of the design of this case, and the comparison design 2nd, and “the”, both designs are in the shape of the body as a whole, and the shape of the body is composed of fixed studs and protrudings on the right side, and the fixed studs and protrudings are repeatedly formed in the fixed studs of the shape of the design of this case, and the other side is formed so that the shape of the design of this case can be exposed to the outside of the body, and the other side is not similar to the shape of the 2nd-shaped design of this case, namely, the shape of the 2nd-shaped design of this case, which is divided into two protrudings in the direction of protruding pressure different from the shape of the 2nd-shaped design of this case.

Nevertheless, the court below erred by misapprehending the legal principles as to the similarity of designs, which affected the conclusion of the judgment, on the ground that the registered design of this case is usually used differently from each other in the location and angle of each tension, and that each tension is used more than 90∑ 10 or more than each tension 10 is very rare in the shape of each tension 90 or more compared with the drawing.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)