Whether the applicant shall be given an opportunity to state his/her opinion if he/she refuses the registration for reasons different from those cited by the original state while maintaining the rejection of the design registration in the first instance trial (affirmative)

If registration is refused for reasons different from those cited in the original condition while maintaining the rejection condition in the initial trial, then the applicant who is a party to the design shall be given an opportunity to state his/her opinion in accordance with Article 53 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) and Article 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990). This provision is a mandatory provision.

Article 53 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990); Article 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Applicant, Patent Attorney Kim Byung-jin et al.

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 90 Ba1043 Dated March 14, 1991

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal No. 1 are examined.

According to the reasoning of the original decision and the record, the first instance court rejected the registration of the principal on the ground that the first instance court’s circumstance constitutes the provisions of Article 5(2) of the Design Act (amended by Act No. 4208, Jan. 13, 1990; hereinafter the same shall apply) since the first instance court’s simple design of the first instance court’s shape, which is a public figure, can easily be created by a person with ordinary knowledge in the field belonging to the design prior to the filing of the application, and the shape and shape of the principal principal is widely used in our industrial society (the vertical prior climate)’s bottom formation of the second instance court’s shape and shape that is not widely used in the first instance court’s industrial community (the second instance court’s shape and shape), and thus, it is difficult to recognize the second instance court’s shape and shape that is merely a new shape and shape of the first instance court’s shape and shape that are not widely used in the first instance court’s industrial community, and it is difficult to recognize the second instance shape and shape of the second instance.

If the registration is rejected for reasons different from those cited in the original condition, the applicant shall be given an opportunity to state his/her opinion in accordance with Article 53 of the former Design Act and Article 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990). This provision is a mandatory provision (see Supreme Court Decision 81Hu10, Feb. 28, 1984). Since there is no evidence suggesting that the court below provided an opportunity to state his/her opinion to the applicant, the procedure for the decision of the court below is unlawful in this respect, and it is reasonable to point this out.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench, who reviewed the remaining grounds of appeal, reversed the original decision, and remanded the case to the Korean Intellectual Property Office.

Justices Choi Jae-ho (Presiding Justice)