The case where the shape of "the design" and "the design subject to confirmation" are dominant and similar when all of them are viewed as a whole.

The case holding that the registered design “” and “design subject to confirmation” are merely commercial and functional modifications that can be easily modified and applied by a person with ordinary knowledge in the field of manufacturing slot pipes, and are similar to the registered design, as a whole, because they have a dominant feature of the shape displayed on the plane of the body body; the elements shown only in the design subject to confirmation are difficult to find the depth of the body body's overall shape; and they are merely commercial and functional modifications that can be easily modified and applied by a person with ordinary knowledge in the field of manufacturing slab pipes for construction pipes.

Article 5 (2) of the former Design Protection Act (amended by Act No. 7556 of May 31, 2005)

Plaintiff (Patent Attorney Kim Jae-sub et al., Counsel for the plaintiff-appellant)

Defendant

February 27, 2009

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on September 26, 2008 on the case No. 883 of 2008 shall be revoked.

1. Basic facts

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2 and 3

A. Details of the registered design of this case

The registered design of this case was filed by the Defendant on December 10, 1998 and registered under No. 25305 on December 16, 1999, and the description, shape, and shape of the design are as shown in attached Table 1.

(b) Details of the design subject to verification;

The design subject to confirmation is a specific product of the Plaintiff’s work, and the description, shape, and shape of the design are as shown in the attached Table 2 (However, while the goods subject to the registered design of this case are “slves for building piping,” the Plaintiff expressed the goods subject to confirmation as “slves for building pipeline,” the Plaintiff expressed the goods subject to confirmation as “slves for building pipeline,” it is a difference in the expression, which is the same kind of goods

C. Details of the instant trial decision

On March 26, 2008, the Plaintiff filed a petition for a trial to confirm the scope of patent rights with the Intellectual Property Tribunal No. 2008Da883 on the ground that the shape of the registered design of this case and the design subject to confirmation was merely an penmatic shape to secure the function of the product, and that the design subject to confirmation was not similar to the registered design of this case. However, the Intellectual Property Tribunal dismissed the Plaintiff’s petition on September 26, 2008.

2. The plaintiff's assertion and judgment

(a) Claims that the design subject to confirmation may be easily created by the well-known design;

First of all, the Plaintiff asserts that, prior to the application of the registered design of this case, a person who has ordinary knowledge in the field of the manufacture of sludge for building pipeline can easily create the design subject to confirmation by the shape of the original slive slive slive slves, white slives, Hens' sns, and slves as the shape of the slive slive slive slive slves widely known domestically, and that the design subject to confirmation constitutes a free implementation design, and

In general, if a registered design falls under a design that can be created easily by a person with ordinary knowledge in the field to which the design pertains, either a shape, pattern, or color widely known in the Republic of Korea or by a combination thereof, the scope of the registered design right may not be denied before the registration becomes null and void. However, if a design compared with a registered design can be created easily by a person with ordinary knowledge in the field to which the design pertains, prior to the application for design registration, through a shape, pattern, or color widely known in the Republic of Korea, or a combination thereof, the registered design does not fall under the scope of the registered design right without comparison (see Supreme Court Decision 2002Hu2037, Apr. 27, 2004).

As to this case, with regard to the fact that the shapes of posts are widely known domestically prior to the application of the registered design of this case in the field of design to which the design of this case belongs as a health unit, first of all, slateral slateral slater, slateral slater, month Hens' slater, and general or three-dimensional figure, there is not sufficient evidence to acknowledge it, and there is no other evidence to acknowledge it otherwise. In addition, in light of the external difference between the shape of slater and slateral slater which pass through two original customs clearance, the difference between the use and function of slaters, slateral slateral slaters and hens' slateral slateral slaters and slateral slateral slin slin slin slin slin slin slin slin slin slin.

Therefore, we cannot accept the plaintiff's assertion that the challenged design can be easily created by widely known designs.

(b) Claims that the design subject to confirmation may be easily created by means of an open design;

Next, the Plaintiff asserts that the challenged design can be easily created by the design of balcony drainage (No. 11) and the design of the collection pipe (No. 12 through 15, 18, 19) that was publicly known prior to the application of the registered design of this case, and that the design that can be easily created by the publicly known design should also be considered as a free-working design.

Unlike the provisions of Article 5 (2) of the former Design Act (amended by Act No. 6413 of Feb. 3, 2001), which applies to the registered design of this case, provides that "any design (excluding a design falling under any subparagraph of paragraph (1)), which is easily created by a person with ordinary knowledge in the field to which the design belongs, through shapes, shapes, or colors widely known in the Republic of Korea or a combination thereof, shall not be registered, notwithstanding the provisions of paragraph (1), shall not be registered." Thus, the purport of Article 5 (2) of the Design Protection Act, which was amended by Act No. 7289 of Dec. 31, 2004 and effective from July 1, 2005, is that "any design which falls within the scope of the registered design, and is easily known or worked by a person with ordinary knowledge in the field to which the design pertains, shall not be deemed to fall within the scope of the registered design under Article 5 (1) 1 of the Design Act (excluding a design which falls within the scope of the registered design)."

However, Article 5 (2) of the former Design Act, which was in force at the time of the application for the registered design of this case, did not provide for a publicly-used design, and Article 2 of the Addenda of the above Act provides that the requirements for registration of the application for design registration, change of application, examination, trial, review, and litigation prior to the enforcement of the above amendment shall be governed by the previous provisions, and the time to determine whether the challenged design can be created easily by a publicly-known design shall be based on the time of application for the registered design of this case, in light of the above, the time to determine whether the challenged design can be created easily by a publicly-known design cannot be recognized as a freely-used design on the ground that the challenged design could be created by a publicly-known design

In addition, even according to the statements in Gap's evidence Nos. 11 through 15, 18, and 19, although the shape of the trap or water pipe for the drainage of balcony, which was publicly known prior to the application of the registered design of this case, consists of the shape or a similar shape on the ground plan, the shape of the trap or water pipe for the drainage of balcony, which was well known prior to the application of the registered design of this case, is recognized as having been composed of the shape or a similar shape. The shape on the ground plan of these are different from that of the design of this case, so that they can see the shape or a similar shape from the form where the two forms are cut off in the form where the two forms are cut off, and it is difficult to see that the design of this case can be easily created by the shape of the trap or water pipe for the drainage of balcony, it cannot be recognized as having been easily created by a person who has ordinary knowledge in the field of manufacturing the pipe for the construction of this case.

Therefore, we cannot accept the Plaintiff’s above assertion premised on a different view from this point of view.

(c) argument that it does not fall within the scope of rights when performing public performance in good faith;

Furthermore, the Plaintiff, who was manufactured from around 201 201 the Hens' ston shape, had been changed to the shape, and had no intention to infringe the registered design right. Furthermore, the Plaintiff asserted that the person who had ordinary knowledge in the field of manufacturing sludge for building piping pipes can easily make the aforementioned transformation. Thus, even if the registered design is similar to the registered design as a result of the transformation, the Plaintiff should not be viewed as falling under the scope of the right.

However, as seen above, he cannot be seen that he can not easily create spawn in the shape of hens' eggs. In determining whether the design subject to confirmation falls under the scope of registered design right, subjective elements such as intention or negligence of the designer of the design subject to confirmation are not subject to consideration. Thus, the plaintiff's above assertion based on a different view cannot be accepted.

D. The assertion that the challenged design is not similar to the registered design of this case

(1) The plaintiff's assertion

Finally, the plaintiff asserts that the design of this case and the design subject to confirmation are not within the scope of the registered design of this case because the shape of the design of this case are the most functional shape that is the most appropriate for the passage of a large and small multiple pipe, and that, in order to secure the function of the product, the importance of the design is low in determining the similarity of the design. When observing the plane of the two designs, he would have sleep the shape in the registered design of this case, while he would have sleep the shape in the registered design of this case, from the design subject to confirmation, he would have unsleep the shape of hensn, and when observing the sleep, slick, slick, and slicks from the body part of the design subject to confirmation, the design subject to confirmation does not fall within the scope of the right of the registered design of this case.

(2) Determination as to the width of the similarity of the shape

In a case where there exists an alternative form that can be selected for the function of a product among the parts related to the function of a design, the shape of the part cannot be deemed an essential form to secure the function of the product. Thus, barring special circumstances such as that the part falls under the shape of a publicly known design, it cannot be readily concluded that the importance of the design should be low in determining similarity of designs. Thus, it cannot be concluded that the 2nd pipe for construction pipeline use, which is the object of the registered design in this case and the design subject to confirmation, installs a specific space in the concrete structure partitioning the floor of the building in a concrete structure partitioning, which is the object of the registered design in this case and the design subject to confirmation, installs a concrete structure in a concrete structure, securing two drainage pipes only, even if the 2nd pipe is installed inside the concrete structure, so that it can be seen as having the same function as 20th square meters (see, e.g., Supreme Court Decision 200 after completion of the 20th square meters of concrete structure).

In addition, with regard to the fact that the shape of the posts is the shape publicly known in the Republic of Korea prior to the application of the registered design of this case in the field of design to which the design of this case belongs, there is no sufficient evidence to acknowledge it, and there is no other evidence to acknowledge it. Thus, in preparing the registered design of this case and the design to be confirmed, the width of the similarity of the shape should be widened.

(3) Determination on the comparison between the registered design of this case and the design subject to confirmation

(A) Determination criteria

The similarity of a design shall be determined by whether a person who prepares and observess the appearance of each constituent element, not individually, causes a person to feel a different aesthetic sense. If the dominant characteristics are similar, it shall be deemed similar even if there is little difference in detail. Furthermore, objective creativity requested by the Design Protection Act is not a unique feature that is not similar to all in the past or present, because it is not a high level of originality, i.e., a unique feature that is not similar to all in the past or present, and thus, if an aesthetic device that new aesthetic sense is combined on the basis of the past and present features and it is recognized as a aesthetic value different from the previous design in the whole, the design registration under the Design Protection Act may be granted under the Design Protection Act. However, even if a part of the creativity is recognized, if an aesthetic value different from the previous and present design is not recognized as a whole, it is merely the commercial and functional transformation of an officially known design (see, e.g., Supreme Court Decision 200Hu3388, Jun. 29, 2001).

(B) Specific preparation

In comparison with the design of this case and the design subject to confirmation, the two designs consist of a combination of a small and large original form as a whole, and shall form the body body body with a pole of the shape, and a franchis are formed at the bottom of the body body. A frans are formed at the bottom of the body body, and four solid information centers are formed at the outer side of the franchis office.

On the other hand, compared with the above drawings, the registered design of this case is in line with the shape of the outer side of the body, and compared with the outer side of the body, the outer side of the challenged design of this case is divided into several parts, such as a stone flag, "" and "", which are the outer side of the challenged design. The low side of the registered design of this case also forms a flox branch of the shape, but the flox branch of the Henton shape is formed on the lower side of the challenged design, and the design subject to the confirmation has been through two parts.

(C) the board:

According to the above facts, the registered design of this case and the design subject to confirmation shall be deemed to be within the scope of the similarity of the registered design of this case, unless it is evaluated that the design of this case has an objective creativity capable of suppressing the depth of the shape, as a whole, as long as pilings are broad in comparison with the registered design of this case and the design subject to confirmation, unless it is evaluated that the design of this case has an objective creativity capable of suppressing the depth of the shape, which is the controlling impression from the shape.

However, the elements indicated in the above-mentioned design are parts difficult to find the depth of the body body in light of the overall shape of the body body, and it is merely commercial and functional transformation that can easily change and apply to a person with ordinary knowledge in the field of manufacturing slves for architectural piping pipes, and thus cannot be deemed to have reached the degree of a difference in the overall aesthetic sense.

(4) The theory of lawsuit

Therefore, we cannot accept the Plaintiff’s assertion that the scope of similarity between the challenged design and the registered design of this case should be narrowly seen as the scope of similarity between the shape, and that the creativity of the elements presented only in the challenged design should be enhanced.

3. Conclusion

Thus, all of the plaintiff's assertion that the challenged design does not fall under the scope of the right to registered design of this case is without merit, and the decision of this case is legitimate as the conclusion of the decision of this case is consistent, and the plaintiff's claim seeking

Judges Kim Yong- Dis (Presiding Judge)