LLC (Patent Attorney Seo Young-young et al., Counsel for defendant-appellant)

Defendant (Patent Attorney Kim Jong-soo, Counsel for defendant-appellant)

August 12, 2011

1. The decision made by the Intellectual Property Tribunal on June 2, 201 with respect to a case No. 2011No. 789 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

(a) The plaintiff's registered design;

1. Goods that are the object of design: A protective zone against entry of vehicles for shock and absorption;

(2) Date of application/registration date/design registration number: April 12, 2006/ February 26, 2007/ (registration number omitted)

(iii)a description of the design;

(a)materials are metal, synthetic resin and rubber materials;

(B) An entry protection zone for vehicles for shocking shocking purposes, such as in reference, is to prevent vehicles from breaking the center line or leaving the side in normal course at intervals of time on the center of the road or on the side of the road, and to prevent the vehicle from breaking the center line or leaving the side in the direction of shocking, as well as from reducing the shock in the event of a collision of the vehicle; and at the same time, ensure that the vehicle can return to normal course.

(iv) The essential point of the creation of the design: The shape, shape, and combination of the shape, and the shape of the design for preventing the entry of vehicles for absorption of the core level as the main point of the design creation content;

5) Drawings: as shown in [Attachment 1] drawings (hereinafter “instant registered design”), the Plaintiff’s registered design is referred to as “instant registered design”).

(b) Compared designs;

1) A comparable design 1

The design of the “road Protection Zone for the Bluort absorbing” inserted in the Utility Model Gazette for Registration publicly announced on August 9, 2005 (No. 3, No. 3) and the shape and shape thereof (attached Form 2) shall be as specified in paragraph (1).

2) Compared design 2

The design of "the shot shocking device" published in the Patent Gazette (No. 5 and No. 4) published on June 15, 2001, which is a design of "the shot shocking device", and the shape and shape thereof (attached Form 2) are as specified in paragraph (2).

C. Reasons for the trial decision

1) On April 7, 2011, the Defendant filed a petition for trial to invalidate the design registration, asserting that the registered design in the instant case is similar to the comparative design 1 and the overall shape and shape. As such, either falls under Article 5(1) of the Design Protection Act or a person with ordinary knowledge in the field to which the design pertains (hereinafter “ordinary designer”) can easily create the design by comparison design 1, and thus, it constitutes a design under Article 5(2) of the Design Protection Act.

2) 특허심판원은 2011. 6. 2. 2011당789호 로, 이 사건 등록디자인은 ① 몸체의 전체적인 형상이 둥근 원통형이고, ② 몸체 측면의 외주면에는 일정한 간격으로 2개의 골이 형성되어 있으며, ③ 각 골은 ‘〕〔’와 같은 형상이고 상하부의 모서리 부분이 라운드지도록 형성되어 있고, ④ 몸체 중앙은 둥근 원형의 통공이 형성되어 있는 점에서 비교대상디자인 1과 같으므로 그 전체적인 심미감이 비교대상디자인 1과 유사하여 디자인보호법 제5조 제1항 의 디자인에 해당한다는 이유로, 피고의 심판청구를 받아들이는 이 사건 심결을 하였다.

[Reasons for Recognition] Gap evidence Nos. 1-5, Eul evidence Nos. 3 and 4

2. Summary of the defendant's assertion

Since the registered design of this case is identical or similar to the comparative design 1 or 2, it constitutes a design under Article 5(1) of the Design Protection Act or an ordinary designer may easily create the comparative design 1 or 2. Thus, it constitutes a design under Article 5(2) of the Design Protection Act.

3. Whether the registered design of this case is identical or similar to the comparable design 1 or 2

A. Whether the goods are identical or similar

The registered design of this case and the comparative design are both designs related to the prevention of vehicle entry for absorption (i.e., the “road protection zone”; hereinafter referred to as the “road protection zone for shocking”), and thus, the product subject to the design is identical.

(b) whether the form is identical or similar;

1) Legal principles

The similarity of designs should be determined not separately from each element, but from whether a person who can observe and see the overall appearance of the designs causes different aesthetic sense. In this case, from the perspective of whether a person who sees a design is aware of the most easily leading part of the design as an essential part, and observing and observing it, and causing a difference in their aesthetic sense, the similarity should be determined. At the same time, not only when the design is used as an expression but also when the aesthetic sense by appearance at the time of transaction should be taken into consideration (see Supreme Court Decision 200Hu129, May 15, 2001). If the dominant feature is similar, it should be deemed as similar even if it is somewhat different from the other, it should be determined that the design right has been granted an exclusive design right, including the 20-shaped shape of a design, and thus, it should be determined as 60-dimensional shape, not by the Supreme Court Decision 200Hu706, Nov. 26, 199.

2) The essential part of the two designs

The registered design of this case and the comparative design are the design of the road protection zone for the shock absorption used at the center of the road or on the side of the road. In the course of the transaction, the part, which attracts human attention in both designs, is the shape and shape of the entire design, and in the City/Do, Do, and Do, where the form can be well known, the registered design of this case is the same as the registered design of this case, the comparative design 1 is the same as the comparative design, and the comparative design 2 is the comparative design, and the comparative design 2 is the same as the comparative design.

(iii) common points and differences;

먼저 이 사건 등록디자인을 비교대상디자인 1과 대비하여 보면, 양 디자인은 ① 상하 모서리가 만곡된 원기둥 형상인 점, ② 몸체 둘레에는 상하 2줄로 테두리 형태의 홈이 형성되어 있는 점, ③ 중심부에는 지주를 삽입할 수 있도록 통공이 형성되어 있는 점에서 공통되나, ㉠ 이 사건 등록디자인이 몸체의 폭과 높이의 비율이 약 5:6으로서 폭에 비하여 높이가 더 길어 균형이 잡혀 보임에 비하여, 비교대상디자인 1은 몸체의 폭과 높이의 비율이 약 10:9로서 폭에 비해 길이가 짧아 땅딸막해 보이는 점, ㉡ 이 사건 등록디자인이 몸체 상단부에 홈이 없음에 비하여 비교대상디자인 1은 방사형으로 6개의 홈이 깊게 패여 있는 점, ㉢ 이 사건 등록디자인이 몸체 상단과 하단이 동일한 형상임( , )에 비하여, 비교대상디자인 1은 몸체 상단부 위쪽이 같고 하단부 안쪽이 와 같이 만곡되어 있어 몸체의 상·하단이 서로 다른 점, ㉣ 이 사건 등록디자인이 몸체 상·하단의 통공 입구에 , 와 같이 두께가 얇은 돌출부가 형성되어 있음에 비하여, 비교대상디자인 1은 몸체 상·하단의 통공 입구에 돌출부가 형성되어 있지 않은 점 등에서 차이가 있다.

그리고 이 사건 등록디자인을 비교대상디자인 2와 대비하여 보면, 양 디자인은 ① 전체적으로 원기둥 형상인 점, ② 몸체 둘레에는 줄이 형성되어 있는 점, ③ 중심부에는 지주를 삽입할 수 있도록 통공이 형성되어 있는 점, ④ 몸체 상단의 통공 입구에 돌출부가 형성되어 있는 점에서 공통되나, ㉠ 이 사건 등록디자인이 상하 모서리가 만곡되어 있음에 비하여, 비교대상디자인 2는 상하 모서리가 각이 지어 있는 점, ㉡ 이 사건 등록디자인이 몸체 둘레에 2개의 음각테두리가 있음에 비하여 비교대상디자인 2는 몸체 둘레에 1개의 양각테두리가 있는 점, ㉢ 이 사건 등록디자인의 상단과 하단이 동일한 형상임( , )에 비하여, 비교대상디자인 2은 몸체 상단부 위쪽이 와 같고 하단부 안쪽이 와 같이 만곡되어 있어 몸체의 상·하단이 서로 다른 점, ㉣ 이 사건 등록디자인이 몸체 하단의 통공 입구에도 돌출부가 형성되어 있음에 비하여, 비교대상디자인 2은 몸체 하단의 통공 입구에는 돌출부가 형성되어 있지 않은 점 등에서 차이가 있다.

(iv)Preparation results

Meanwhile, according to the evidence Nos. 6, 9, 10, 11, and 13 of the registered design of this case, it can be recognized that the registered design of this case was used for the purpose of shocking roads such as shocking, , and e.g., shocking, and according to this, it can be seen that the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the upper body of the body of the body of the body of which the upper body of the body of the body of the body of the body of the body of the body of the body of the body of the body of this case was formed to inserting a prop

Therefore, according to the legal principle that the importance of the registered design of this case and the comparative design of this case should be evaluated low, the common points of both designs are as follows: most of the registered design of this case and the comparative design of this case are already publicly known or publicly implemented in the form of similarity, and the differences between both designs are highly important in the determination of similarity in the form of a new creation, compared to the low importance in the determination of similarity; due to such differences in both designs, the overall registered design of this case is more complicated than hick and hump, and the overall registered design of this case is more balanced in the upper and lower hump, while the comparative design 1 is complicated due to the radioactive home of the body body body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the comparative design, and it is different from each other that the height of the comparative design of this case 2 is slided so far away from their lids, and that they are shick.

C. Sub-decision

Ultimately, since the registered design of this case and the comparative design of this case are rarely different, it cannot be deemed as the same or similar design.

4. Whether the ordinary designer of the registered design of this case can easily create the registered design of this case;

(a) The field to which the design belongs;

Since both the registered design of this case and the similar design are the road protection zone for the absorption of shock, the field to which the design belongs is the same.

(b) preparation in forms;

1) Formation and analysis of the registered design of this case

The registered design of this case is the shape of 5:6 in which the width and height of the body are in the shape of 2:2 the body body is in the shape of 3rd parts in the upper, suspending, and bottom of the body. Among them, the upper end and bottom of the body are in the same height and are higher than 1.5 times compared to the interruption. ③ The protruding part protruding with the upper end of the body with a thickness of less than 1st and the upper end of the body is in the same form as the entrance of the upper end and lower end of the body, ④ there is no door, the upper part of the body, and the lower part of the body are in the shape that covers the upper part of the body. ⑤ The upper part of the body is in the shape that covers the upper part and lower part of the body.

2) Preparation for comparative designs

In comparison with the comparative design, the composition of the registered design in the instant case is similar to the shape “the height and height of the body is about 5:6” of the comparative design 2, and the shape “the shape of the registered design in the instant case is similar to the shape “the height and height of the body is above 1.25 times the height of the body and the bottom” of the comparative design 1. However, although the shape of the registered design in the instant case is similar to the shape “the height and height of the body is above 1.25 times the height and the height of the lower end” of the comparative design 1, there is no evidence suggesting that the composition of the registered design in the instant case is not initiated by the comparative design.

C. Sub-decision

Therefore, the registered design of this case cannot be said to be a design that would have been created easily by an ordinary designer by combining the comparative designs.

5. Conclusion

Thus, the registered design of this case is not the same or similar design as the comparative design, but is not a design that can be created easily by an ordinary designer through the comparative design, so the registered design of this case shall not be invalidated. Accordingly, the decision of this case is unlawful differently from this conclusion, and the plaintiff's claim of this case seeking revocation is justified, and it is so decided as per Disposition.

[Attachment]

Judges Kim Byung-sik (Presiding Judge)