(영문) 특허법원 2009.8.20.선고 2009허2326 판결

The decision made by the Intellectual Property Tribunal on February 25, 2009 by the Intellectual Property Tribunal on the case No. 2378 shall be revoked.

Reasons

1. Basic facts

A. The date of the application of the registered design (1) of this case (1)/ the registration date/registration number: August 27, 2004 (3) / The name of the article No. 372310 (2) on January 7, 2005 / The name of the article 372310 (3): The description of the article 372310 (3): The essential point for the description of the article 372: the combination of the shape and shape of the article 1 and the shape of the article 3310 (4) on the basis of attached Form 1: the defendant

(b) A design subject to verification;

Goods subject to confirmation are "packer mileage", and their shapes and shapes are as shown in attached Table 2.

C. The comparative design (No. 5 No. 5) is related to the "duplicating and spreading mileage" inserted in the registration number of the Design Gazette registered on April 27, 1999 and registered on January 20, 200, and the combination of its shape and shape is as shown in the attached Table 3.

D. Details of the instant trial decision

On August 12, 2008, the Plaintiff filed a claim against the Defendant for a trial to confirm the scope of a registered design of this case on the grounds that the design subject to confirmation does not fall under the scope of the right to the registered design of this case, and the Korean Intellectual Property Tribunal deliberated on it by 2008Da2378, and rendered a trial decision of this case not accepting the said request on the grounds that the design subject to confirmation falls under the scope of the right because it is similar to the registered design of this case and falls under the scope of the right.

【Ground of recognition】 Evidence Nos. 1 through 5, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant trial decision

A. Summary of the plaintiff's assertion

The design subject to confirmation shall not be similar to the registered design of this case, the aesthetic sense selly selbly, as a whole.

Although it does not fall under the scope of the registered design of this case, the trial decision of this case, which concluded differently, is unlawful.

B. Whether the challenged design falls under the scope of the right to the registered design of this case (1)

The similarity of a design shall be determined not separately from each element of the design, but depending on whether a person who is deemed to observe and observe the overall appearance in comparison with the overall appearance feel a different aesthetic sense. If the dominant characteristics are similar, it shall be deemed similar even if there is a little difference in detail (see Supreme Court Decision 2000Hu3388, Jun. 29, 2001). In this case, the similarity shall be determined from the perspective of whether a person who is deemed to have the design understood as an essential part leading the most easily, and it causes a difference in the aesthetic sense of ordinary consumers by observing and observing it (see Supreme Court Decision 95Hu1135, Jan. 26, 196). Even if a publicly known part among the elements of a design exists, it shall be determined by the Supreme Court Decision 196Hu164, Jun. 16, 196, 196.

(2) In comparison with the registered design of this case and the design subject to confirmation, the design of this case and the design subject to confirmation are as shown in Table 1, the 【Attachment 1】

The two designs are similar in the following: (a) the shape of protruding the upper right is divided into a lid unit and the main body; (b) the lid number of the top lid unit is formed at the same intervals toward the static surface; (c) the shape of the lid is placed at the left side of the two designs; (d) the shape of the registered design in this case is so formed that power transmission tools are located on the right side; and (e) the shape of the protruding the top does not fall within the upper part of the protruding lid; and (e) the shape of the protruding lid does not fall within the upper part of the protruding lid, and the shape of the protruding lid is formed in the upper part of the protruding lid; (e) the design subject to confirmation has been formed with the upper part of the protruding lid and the upper part of the protruding lid; and (e) the shape of the design in this case has not been formed by protruding the upper part of the protruding lid and the upper part of the protruding.

1. (B) In comparison with the static map of the registered design of this case and the challenged design of this case as shown in Table 2, the two designs of this case are similar in that the lid 2 design of this case is protruding out in the upper right side of the main body and in that the earth and the power transmission tool is protruding out in front, respectively, at the lower part of the main body of Mangles, respectively. Meanwhile, the two designs of this case do not seem rib, while the two designs of this case do not stick out directly and directly to the upper part of the lid lid, while the challenged design of this case shows the upper part of the lid lid lid, and the upper part of the main body lid lid 2, and the upper part of the challenged design of this case does not stick out to the right side of this case, and the upper part of the design of this case does not stick out to the right side of this case, and there is no difference in the right side of this case.

C) In comparison with the design of this case and the design subject to the confirmation as shown in Table 3, the design of this case is similar in that the shape and both sides of the registered design of this case are assigned with a width emission outlet and power transmission tool respectively to the entire shape and both sides of the registered design of this case. Meanwhile, the two designs are formed by a lid so far as the lided design of this case is rectangular and protruding towards the lid so far, and there is no shape in this body. On the other hand, the challenged design of this case is not formed with a lid so far, and there is no lid so far, and the design subject to the confirmation is not formed with a lid so far and it is not formed with a lid so far, and six ribs are formed from the upper part of this body to the middle part of this body, and the registered design of this case does not stick to the right side, while the registered design of this case is formed on the left side, it is not protruding out from the left side.

D. In preparation for the left-hand side of the registered design of this case and the design subject to confirmation as shown in Table 4, 【No. 4】

The two designs are similar to the two designs: (5) the upper part of the main body is lower than the upper part, and the protruding part of the original body is formed at the left part of the main body; (6) the lower part of the main body forms a hole; and (3) the earth and rocks are formed at the same location in the main body; and (4) the earth and rocks are formed at the same shape. Meanwhile, the two designs are similar to the two designs: (1) the lid of the registered design of this case is the lid where the upper part of the design of this case is lid with the upper lid; (2) the lids of the original form form are formed close to the boundary part of the main body; (3) the lids of the main body form form and the upper part is formed at the right-hand end of the main body; and (3) the lid is formed at the top of the main body form and the lower part is 4) the lower part of the registered design is formed at the right-hand end of the main body; and (4) the lower part of the registered design is formed at the lower part of this case.

The two designs are similar to the fact that the two designs have a protruding part in the center of the body, and a power transmission tool in the form of the same flag is formed at the bottom of the left side, 8 are formed at the right side of the body, and there is a hole formation at the bottom of the body, etc. Meanwhile, the two designs are similar to the fact that the registered design of this case is formed at the left side of the upper part of the upper part of the upper part of the upper part of the upper part of the upper part of the upper part, and four protruding structures are formed at the lower part of the body, and the two designs form four protruding structures at the upper part of the body, and the home is not formed at the right side of the upper part, while the design subject to confirmation does not form a protruding part of the upper part of the upper part of the upper part of the upper part of the upper part, and the protruding structure is not formed in the upper part of the upper part of the upper part of the upper part of the upper part, and there is no difference in the shape of fin.

In preparation for the ground plan of the registered design of this case and the design subject to confirmation, 2

[Attachment 6]

A design is similar in that a power transmission tool is formed on the right side, and the arrangement is located in the slope of the ordinary event transformation of a lided lid. Meanwhile, the two designs are different from the design of this case where the registered design of this case is formed so as to be sob and the knob is not protruding on the left side, and protruding-in is formed on the right side, while the challenged design of this case is formed by protruding-out, the knob is protruding-out in the right side, and multiple knob is protruding-out in the left side, and a large number of knobs are formed on the upper side, and protruding-out is not formed on the right side.

(G) In preparation for the lower level of the registered design of this case and the design subject to confirmation as shown in Table 7, 2 【Attachment 7】

A design is similar in that the power transmission tool is placed on the whole shape and right side of the design formed on the left and right side. Meanwhile, the two designs are not identical in that the design of this case is not composed of a lux in the axis connected to the power transmission hole, and they do not stick out in the left side as a rectangular shape with a lux, which has a lux, which is formed on the left side, and do not stick out in the left side. while the design subject to confirmation forms five lux in the axis connected to the power transmission hole, and the hands-on on the left side is protruding out on the right side, and the design subject to confirmation forms five luxle in the axis connected to the power transmission hole, and the shape of the registered design of this case is not easily distinguishable from the shape of the designated design of this case (the shape of the two luxle-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-shaped-design, and the shape of the registered design of this case is not identical to the upper part (3).

The difference between the above A and the car above is lids and the thickness, shape, and formation of hybrids formed at the main body, shape, whether knife length and knife length, etc., whether knife formation is made by the top unit, whether the knife formation is made by the top unit, whether the knife formation is made by knife formation, the location and size of knife insertions in the original form, the home of the knife and its bottom formation, etc. The above difference is likely to be of creativeity, but it is merely the commercial and functional transformation of the registered design of this case, which cannot affect the aesthetic sense between the two designs as a whole.

C) Determination of preparation

As such, the difference between the registered design of this case and the design subject to confirmation is merely the commercial and functional transformation of the registered design of this case, and the two designs, despite the difference between the above two designs, are similar to the shape and shape due to the similarity between ① and ① similar points. Therefore, the design subject to confirmation ought to have the person see the design of this case see the whole, such as the registered design of this case.

(4) Judgment on the Plaintiff’s assertion (A) Summary of the Plaintiff’s assertion

The registered design of this case and the design subject to confirmation are related to the external cases of Saturdays, and the main body of the design of this case and the shape and shape of the main body of the design of this case are publicly known or essential to secure the function of the goods, and thus, their importance should be evaluated as low in determining the similarity of two designs. (B) Whether the shape and shape of the main body of the registered design of this case were publicly known by the comparative design.

In comparison with the shape and shape of the instant registered design and the comparative design as shown in the attached Table 4, the shape and shape of the instant registered design and the design subject to comparison are as follows: (a) the shape and shape of the shape and the shape of the earth inserted in the main body are as follows; (b) the earth emission mechanism is as follows; (c) the ICCO power transmission mechanism is as “the part that has caused a large amount to the center (the part that is set up in the center)”; and (d) the Gad, etc., were as different from each other. Therefore, it cannot be deemed that the shape and shape of the parts, such as the main body, of the instant registered design, were publicly announced by the comparative design.

Whether it is an essential form to secure the function of the goods

Even if the part concerning the function of a product among the design parts exists in a selective alternative form that can secure the function of the product, it shall not be deemed an essential form to secure the function of the product (see Supreme Court Decision 2005Hu2922, Jul. 28, 2006). Among the registered design of this case, the shape of a earth emission outlet, power transmission tool and protruding plle plle plle plle can be combined with a device corresponding to the spatial reproduction, etc. installed in the reproduction machine, etc., which is the object of the registered design of this case, inasmuch as the shape of the design of this case is to combine with a device corresponding to the spatial reproduction, etc. installed in the reproduction machine, etc., which is the object of the registered design of this case. However, as seen in attached Form 5, there is an alternative form that can secure the function of the design of this case and the object of the design subject to confirmation, and therefore, the shape of the above earth emission outlet, etc. among the registered design of this case cannot be considered an essential shape (D).

Therefore, the above assertion by the first-party plaintiff cannot be accepted on a different premise.

C. Sub-committee

As such, the registered design of this case and the registered design of this case are similar to each other, so the registered design of this case is deemed to fall under the scope of the registered design of this case. Thus, the decision of this case, which is identical with this, is lawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is without merit, and it is decided as per Disposition by the assent of all participating Justices.

Judges

Justices Kim Jong-hwan

Judges equal to judges;

Judges Park Jong-chul

Site of separate sheet

A person shall be appointed.

참조판례

-대법원 1996. 1. 26. 선고 95후1135 판결

-대법원 2001. 6. 29. 선고 2000후3388 판결

-대법원 2006. 7. 28. 선고 2005후2922 판결

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