[1] The case holding that if a product using a valve as an external component was supplied without any specific confidentiality agreement prior to the application of a registered design, the cited design was implemented domestically

[2] The case holding that a registered design on the body of a valve for the prevention of shock before the application is the design similar to the quoted design which was implemented openly in the Republic of Korea

[1] The case holding that if a product using a valve as an external component was supplied without any specific confidentiality agreement prior to the application of a registered design, the cited design was implemented domestically.

[2] The case holding that a registered design on the body of valves for the prevention of shock in the ELP shall be the design similar to the cited design which was implemented publicly in the Republic of Korea before the application

[1] Article 5 (1) 3 of the Design Act / [2] Article 5 (1) 3 and Article 68 (1) 1 of the Design Act

U.N.K Industry Co., Ltd. (Patent Attorney Shin Sung-sung et al., Counsel for the defendant-appellant)

Daoco Co., Ltd. (Patent Attorney Kim Jong-nam, Counsel for defendant-appellee)

Supreme Court Decision 2003Heo1635 Delivered on September 29, 2003

1. The decision made by the Intellectual Property Tribunal on October 30, 2002 by the Intellectual Property Tribunal on the case No. 2378 shall be revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged in light of the whole purport of Gap evidence 1-4-1, Gap evidence 5-1-4, Gap evidence 6-7, and all the arguments.

A. Details of the registered design of this case

(1) Goods: The body body of a valve for the prevention of shock before the ELP, ② the summary of the Speaker: the design on the body of a valve for the prevention of shock before the ELP as shown in the attached Form 1 and on the body of a valve for the prevention of shock as shown in the attached Form 1, whose material is metal, ③ the filing date of the application date/registration date: August 8, 200; ④ the registration number No. 283048, May 5: the Defendant;

B. Contents of the quoted design

[Attachment 2] The shape and shape, such as photographs, and the body body of a valve for the prevention of shock, the material of which is metal.

C. Plaintiff’s petition for invalidation trial of the registration of this case (Patent Tribunal 2001Da2378)

(1) Grounds for claim

The registered design of this case is a design similar to the quoted design publicly worked domestically prior to the filing of the application, which is registered in violation of Article 5 (1) 3 of the Design Act. Thus, it should be invalidated by Article 68 (1) 1 of the Design Act.

(2) The judgment of the court below

On October 30, 2002, the Korean Intellectual Property Tribunal rendered a decision to dismiss the plaintiff's claim.

(3) Summary of the grounds for the instant trial decision

The evidence submitted by the Plaintiff alone cannot be deemed as the design publicly implemented domestically prior to the filing date of the registered design of this case.

2. Determination on the legitimacy of the instant trial decision

A. Summary of the grounds for revocation of the Plaintiff’s trial decision

Since the registered design of this case is a design similar to the quoted design publicly worked in Korea prior to the filing date, which is registered in violation of Article 5 (1) 3 of the Design Act, its registration shall be invalidated pursuant to Article 68 (1) 1 of the same Act.

B. Defendant’s assertion

(i)No evidence exists to deem that the chair has been openly worked domestically prior to the filing date of the instant registered design;

(2) In comparison with the design of this case and the cited design of this case, the registered design of this case provides the body body and a stable sense more than 90 degrees to maintain the angles of body and 90 degrees, while the cited design of this case is likely to cause the body body and about 60 degrees to maintain the angles of body and about the 60 degrees. On the other hand, the cited design of this case is different from the registered design of this case, considering that there is a difference in providing a tri-type reinforcement hub connected to body on the upper side of the scarcityscke, which is linked to body body, and that the registered design of this case consists of two parallel separations in upper part, and the design of this case constitutes a single fixed part connected below the cited design of this case, because there is a very little possibility of change in the shape of the product of this case, the design of this case should be seen to be narrowly similar to the registered design of this case.

(c) Markets:

(i)whether the personal chair is a design publicly worked prior to the filing date of the instant registered design;

In full view of Gap evidence Nos. 5-1 through 4, Gap evidence Nos. 6, 7, and 8-1 and 8-2's evidence Nos. 8-2, witness view, and testimony and oral argument, the articles of the registered design of this case and the quoted design of this case are accessories attached to the ELP gas tank, which are fuel circulations of automobiles using ELP gas as fuel fuel, and are attached to the ELP gas tank to prevent fuel charging at an appropriate quantity of gas above the fuel tank, and the remaining company of South and North Korea supplied valves of the same shape and shape as the quotation from 1994 to the ELP fuel tank, etc. and installed them, and there is no counter-proof otherwise. Thus, the cited model of this case and the cited design of this case can be deemed to have been carried out publicly in the Republic of Korea by the defendant corporation from 194 to the time of its delivery to South and North Korea of the goods expressed by the Speaker.

(2) Whether the registered design of this case and the cited design are similar

(A) Whether the design is similar or not should be separately compared to each constituent element, but should be determined depending on whether a person who observess the appearance as a whole causes different aesthetic sense. If the dominant characteristics are similar, it should be deemed similar even if there is little little difference in the detailed point. In addition, the objective creativity required by the Design Act is not a unique feature that is not similar to all of the past or existing features. Thus, if an aesthetic design combining a prior design that combines a new aesthetic value based on the past and existing features and thus recognizes another aesthetic value as different from the previous design, a design registration under the Design Act may be granted. However, even if creativity is recognized in part, if it is not recognized as a whole from the past and present designs, it is merely a commercial and functional alteration of an publicly known design (see, e.g., Supreme Court Decision 200Hu3388, Jun. 29, 2001).

(B) The design of this case and the cited design of this case are similar to the design of the same product, both of which are valves for the prevention of shock before ELP, and are similar to the overall shape. In preparation for detailed shapes and shapes, the design of this case is also set up in a vertical line to the body of the body the safety side of which is set up at an angle of 60 degrees toward the body of the body, and the safety side is formed at an angle of 60 degrees toward the body of the body of the body, and the small size of the body is formed inside the body of the body, while the two columns are connected to the design of this case, while the two columns are connected to the design of this case, the two columns are different in that the two columns are connected to each other, and the remaining shapes and shapes of the cited parts are completely identical with the design of this case and the registered design of this case.

In full view of the difference between the registered design of this case and the cited design of this case, the difference between the shape and the cited design of this case is merely a functional and commercial transformation that can easily change according to the structure, size, or consumer's demand, installed on the vehicle if the person with ordinary knowledge in the field is a person (the defendant asserts that the safety side can be easily changed at the body so that it can be achieved the smallization of valves, and thus, the change in the shape of the safety side shape is mainly caused by the functional demand.) The difference between the registered design of this case and the quoted design of this case is difficult to view that there is a difference in the overall depth, and since the remaining structure and shape of the cited design of this case are completely identical to those of the cited design of this case and the cited design of this case, even though the registered design of this case and the cited design of this case cannot be seen as completely changing the function or structure of the cited design of this case, the registered design of this case and the cited design of this case are similar to that of the cited design of this case.

D. Sub-committee

Therefore, the registered design of this case is a design similar to the quoted design publicly worked in Korea prior to the filing of the application, and is registered in violation of Article 5 (1) 3 of the Design Act, and its registration shall be invalidated pursuant to Article 68 (1) 1 of the Design Act, and the decision of this case which did not accept the plaintiff's request for a trial in this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges Of Kimchi (Presiding Judge)