[1] Criteria for determining the similarity of designs

[2] The case holding that the court below erred in the judgment of the court below, without considering the external appearance at the time of use, in determining the similarity of the part corresponding to the support district of a fixed site, which is a combination of the shapes and shapes of the registered design "(s)" and the shape, which is a combination of the shapes and shapes, of the registered design "(s) of the design and the clothes "(s)", which is a combination of the shapes and shapes

[1] Article 5 of the Design Act / [2] Article 5 of the Design Act

[1] Supreme Court Decision 95Hu1135 delivered on January 26, 1996 (Gong1996Sang, 791) Supreme Court Decision 97Hu891 delivered on February 24, 1998, Supreme Court Decision 2000Hu129 delivered on May 15, 2001 (Gong2001Ha, 1416)

king Industrial Co., Ltd. (Patent Attorney Hah-soo, Counsel for defendant-appellant)

Ga Co., Ltd.

Patent Court Decision 2001Heo5640 delivered on May 31, 2002

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the shape and shape of the cited design of this case (registration No. 25042) consisting of the combination of the shape and shape of the "Sadu Posp Zone" and the shape and shape of the registered design of this case (registration No. 25042) which combines the shape and shape of the "Sadup Zone" and the part corresponding to the fixed location support zone of 3, which combines the shape and shape of the quoted design of this case (registration No. 25042), are similar, since the use of both sides are identical and external walls constitute a structure of wire type, and since the external wall of this case constitute a structure of wire type, 3 of the quoted design can be seen as the appearance of the fixed area newly constructed by the letter of quoted design of this case. Thus, even if there is no urban forest similar to the registered design of this case, even if the shape and shape of the cited design of this case were clearly and concretely expressed, the defendant's assertion of the shape and shape of this case cannot be specified.

2. Whether the design is similar should not be separately compared to each element comprising the design separately, but it should be determined depending on whether a person who, after observing the appearance as a whole, makes another person feel a different aesthetic sense. In such cases, not only when the design is used for a product expressed, but also when the depth by the appearance at the time of transaction should also be considered (Supreme Court Decision 200Hu129 Decided May 15, 2001).

According to the above legal principles and records, the registered design of this case where the shape and shape "" are used as it is related to the support tool where the original pole-shaped part (hereinafter referred to as "water rail box") that supports the flexivity of a fixed area by using the source steel which puts in the inner part in support of the new site by putting out the fixed area into the ceiling or floor, and the fixed part of the enclosed shape may be connected with the fixed site and if this article is combined with the fixed site owner, it may not be seen that the shape and shape of the water rail can no longer be seen as being revealed outside the shape of the fixed site. However, even if the area does not combine with the fixed site, the area is a transaction where the shape and shape of the processed site are protruding out, and as such, the entire shape and shape of the registered design of this case are different from the shape and shape of the fixed area as a whole from those of the 3rd place where the registered design of this case is used as a whole from those of the designated site.

Nevertheless, the court below erred by misapprehending the legal principles on the determination of similarity between the cited Design 3 and the registered design of this case, and the ground of appeal assigning this error is with merit. It is so decided as per Disposition by the assent of all participating Justices, on the ground that the court below erred by misapprehending the legal principles on the determination of similarity between the cited Design 3 and the registered design of this case.

However, according to the records, it is recognized that "the same shape and pattern (referred to as "the original decision" 4)" was produced and sold in a luminous chemical around October 1998, which was prior to the filing date of the registered design of this case (the date of January 7, 1998), and the quoted 4 constitutes a publicly worked or publicly announced design prior to the filing date of the registered design of this case, and if the shape and pattern are corresponding to a private road, which is the most easily leading part of people's attention, the quoted 4 is inserted into the water rail in the shape of the original pole, as seen in the above photograph, and in that the supporting part of the supporting part is an excursion ship, the registered design of this case should be invalidated under Article 5 (1) 3 of the Design Act, and thus, the registration of the registered design of this case should be invalidated (the registered design of this case should be invalidated under Article 5 (1) 4 of the Design Act).

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)