[1] Criteria for recognizing the similarity of design and objective creativity

[2] The case holding that two chairpersons are not similar to one another due to a substantial difference in container lids

[1] The principal body of a design is attracting an aesthetic hobby in the person’s mind to view it. Thus, in determining the similarity of a design, each element constituting it should not be prepared partially separately, but it should be determined depending on whether it is similar to an aesthetic sense and impression to be ventilated in the person’s mind to observe and observe the whole as compared with the whole. In addition, the objective creativity required by the Design Act is not a strict meaning creativity, but a combination of an aesthetic device that gives a new aesthetic impression to the inventor, and it is sufficient to the extent that the former president and other aesthetic values are recognized in its entirety.

[2] Examining the main design and the quotations of the upper part of the two design, the size and shape of the upper part of the front part of the two design are different from each other in the size and the shape of the upper part of the front part of the design, and the location of the end part of the front part of the design, and the thickness of the front part placed in the middle part, protruding the upper part of the front part, the vertical shape is close to the vertical length, and there is a remarkable difference between the upper part and the upper part of the design, and the upper part are similar to each other, but it is often seen as a means that combines the upper part of the upper part of the lid with the upper part of the front part of the design, and there is no substantial difference between the upper part and the upper part of the design in the form of a change in the shape and upper part of the front part, and if there is no substantial difference between the upper part and the upper part of the design in the form of a change in the shape and upper part of the front part, it is obvious that there is a big difference between the upper part and upper part of the front part.

[1] Article 5 (1) 3 and (2) of the Design Act / [2] Article 5 (1) 3 of the Design Act

[1] Supreme Court Decision 94Hu1595 delivered on March 31, 1992 (Gong1992, 1435), Supreme Court Decision 93Hu961 delivered on June 14, 1994 (Gong1994Ha, 1963), Supreme Court Decision 93Hu1315 delivered on June 24, 1994 (Gong194Ha, 2106), Supreme Court Decision 94Hu920 delivered on November 21, 1995 (Gong196Sang, 60), Supreme Court Decision 95Hu2091 delivered on June 25, 1996 (Gong196Ha, 2374)

Pacific Co., Ltd. (Patent Attorney Lower-chul, Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 94Na541 dated July 29, 1995

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are also examined.

The main body of the Speaker is to attract an aesthetic hobby in the mind of a person to view it. Thus, in determining the similarity of designs, it shall not be prepared in part separately, but it shall be determined depending on whether the sense and impression to be induced in comparison with the entire body are similar to the sense of a person who can observe the whole body. In addition, the objective creativity required by the Design Act is not a strict originality, but an aesthetic device that combines a device that gives a new aesthetic impression of a inventor, and is sufficient to the extent that it is recognized as having an aesthetic value different from the previous Speaker (see Supreme Court Decision 94Hu920 delivered on November 21, 1995).

According to the reasoning of the decision of the court below, the court below judged the similarity between the design of this case (hereinafter referred to as the principal design) and the quoted design (the open number 92-689 of the Utility Model Gazette 497 (hereinafter referred to as the " liquid container") disclosed by the earlier application, and determined the similarity of the cited design (the open number 92-689 of the open number 497 of the Utility Model Gazette 497; hereinafter the same shall apply) that there is a difference between the shape, shape, and shape protruding out on the outer lids, and the main shape of the air infinite in the upper part. However, this is justified in the registration of the court below under Article 5 (1) 3 of the Design Act, which is merely a small difference and dominant factor, and formed the middle part with a three-story structure, which is the upper part and dominant factor, at a certain intervals outside the upper part, protruding part at the upper part, and as a whole, it is extremely similar to the heart that both consumers were s.

However, according to the records, the size and shape of the upper part of the two designs are different from the location of the main body and the end of the upper part which is arranged as vertical length from the outer top of the two designs. In addition, the height of the upper part placed in the middle part, the thickness of the upper part, the degree of protruding the upper part of the other upper parts, the vertical length is close to the vertical length, the degree of protruding the upper part. Furthermore, the upper part of the upper part above the upper part below the upper part is similar, but this is not well-known, and the upper part above the upper part is often a means of combining the upper part and lower part of the upper part of the upper part of the two designs with the upper part above, and there is a big difference between the upper part of the upper part and the upper part above the upper part above the upper part and the upper part above the upper part above the upper part, and in determining similarity between the upper part and the upper part above the upper part above the upper part and the upper part of the upper part above the upper part.

Nevertheless, the lower court, which recognized and judged as similar by both chairpersons, did not exhaust all necessary deliberations, or erred by misapprehending the legal principles on determining the similarity of designs, thereby adversely affecting the conclusion of the trial decision. Therefore, the grounds for appeal assigning this error are with merit.

Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Tribunal for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)

A person shall be appointed.