[1] Purport of the provision of Article 5(2) of the former Design Protection Act / In a case where the form of an open space or a widely known form is combined, or a combined form is modified, modified, or diverted, the method of determining the level of creation

[2] In a case where the design right-holder A of the comparative design “,” “,” filed a petition for a trial on invalidation of registration against the design right-holder B of the registered design “,” “,” and the Korean Intellectual Property Tribunal rejected the petition for a trial by the Korean Intellectual Property Tribunal, the case holding that the registered design constitutes a design that can be created easily by combining the publicly known form of the comparative design with the publicly known form of the comparative design and the widely known form of the half-gu shape

[1] The purport of Article 5(2) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013) is that, even if the shape, pattern, or color of an open design or a combination thereof (hereinafter “official form”) or a shape, pattern, color, or combination thereof (hereinafter “main form”) widely known in the Republic of Korea has been copied or diverted as it is, or partially modified, the shape, pattern, or color or combination thereof (hereinafter “main form”), a design at a low creative level, such as a design that is merely a commercial or functional alteration without any other aesthetic value, or a design that is merely a modification, combination, or used by a sealed creative number method or expression method in the field of design, can be easily created by an ordinary designer, and thus, it is impossible to obtain design registration.

In addition, even if the form of an open design or a well-known form is combined, modified, or diverted, the level of creation may constitute a low-level design. In determining the level of creation, it is also necessary to examine whether a person with ordinary skill can easily do so in light of the goods subject to an open design or well-known type, the relation between an open design or well-known feature, the general tendency in the field of the design, etc.

[2] The case holding that the lower court erred by misapprehending the legal doctrine on the ground that the registered design falls under a design that the registered design falls under Article 5 (1) 3 of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013; hereinafter the same) and the Korean Intellectual Property Tribunal rendered a decision not to grant Gap's request for a trial against the design right-holder A of the comparative design "," on the ground that the registered design falls under Article 5 (1) 3 of the former Design Protection Act in relation to the comparative design (wholly amended by Act No. 11848, May 28, 2013; hereinafter the same shall apply) and that the registered design falls under a design that can be easily created by combining the publicly known type of the comparative design and the

[1] Article 5(2) (see current Article 33(2)) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013) / [2] Article 5(1)3 (see current Article 33(1)3) and (2) (see current Article 33(2)) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013)

[1] Supreme Court Decision 98Hu591 Decided April 10, 2001 (Gong2001Sang, 1160), Supreme Court Decision 2008Hu2800 Decided May 13, 201 (Gong2010Sang, 1163)

Plaintiff (Patent Attorney Han-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm KEL, Attorneys Kim-hee et al., Counsel for the defendant-appellant)

Supreme Court Decision 2012Hu3794 Decided April 11, 2013

Patent Court Decision 2013Heo3654 decided September 12, 2013

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

The grounds of appeal are examined.

1. Article 5(2) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013) provides that a person with ordinary knowledge in the field to which the design pertains (hereinafter “ordinary designer”) may not obtain design registration, either by combining a design falling under paragraph (1) 1 or 2 (hereinafter “public design”) or by using a widely known shape, pattern, color, or any combination thereof in the Republic of Korea.

The purport of the above provision is that even if the shape, pattern, or color of an open design or a combination thereof (hereinafter referred to as “official form”) or the shape, pattern, or color, or combination thereof widely known in the Republic of Korea (hereinafter referred to as “main form”) has been partially copied or diverted, it is nothing more than commercial and functional transformation that does not recognize any other aesthetic value as a whole, or a design that is merely changed, combined, or used as a creative method or an expression method that is shaking in the field of the design, etc., with low creative level as it can be easily created by a person with ordinary skill (see, e.g., Supreme Court Decisions 2008Hu2800, May 13, 2010; 98Hu591, Apr. 10, 201).

In addition, even if an open design or a well-known form is combined, or a combination thereof is modified, modified, or diverted as above, the level of creation may be lower. In determining the level of creation, it is also necessary to examine whether a designer can easily do so in light of the goods subject to the open design, the well-known fields of the well-known form, the relevance of the publicly known design or the external features of the well-known form, the general tendency in the relevant design field.

A person shall be appointed.

2. We examine the above legal principles and records.

A. In comparison with the registered design of this case (design registration number omitted) using the subject product as the “Mestal and container container” and the comparative design 2 at the time of the original adjudication, there are differences as follows. In other words, the registered design of this case from the body shape of the body body is: (i) compared to the shape of the body body, the registered design of this case is string without the name of the body body; (ii) compared to the shape of the body body shape, the comparative design 2 returned to the body of the pande pande, with a deep diameter from the entrance of the unit to the lower part of the spande. (iii) The registered design of this case from the top of the spande shape, compared to the shape in which the spande and the upper part of the spande are both the same as the front part of the cover. (iv) compared to the shape of the registered design of this case, the shape of the design of this case is a person who has the upper part of the upper part of the front part of the design.

A person shall be appointed.

B. However, such difference ① and difference ② is a three-dimensional shape widely known as a cover of the comparable design 2, which is one of the shapes widely known, and can be overcome by combining each two-dimensional shape, which is a well-known shape, and the difference ③ is merely a commercial and functional alteration that is not recognized any other aesthetic value in light of the whole as a whole, because the shape is partially modified into a combination of the aforementioned publicly known form and the well-known form.

In addition, the goods subject to the comparative design 2 are the container and container of the main body, and the shape of the half-gu shape is the general form widely known in the same field of container, and the comparative design 2 differs in terms of the shape of the string and the string part of the cover and the shape of the body of the string part, etc. However, considering the overall view of the fact that the inside space of the string part is formed and the shape of the string part has the external characteristics that are common to the half-gu shape, it is not necessary to make a special creative effort to reach such combination.

C. Therefore, the registered design of this case constitutes a design that would be easily created by an ordinary designer by combining the publicly known shape of the comparative design 2 and the widely known shape of the half-gu shape.

3. In the same purport, the lower court did not err by misapprehending the legal doctrine regarding the determination of utility modelability, or by misapprehending the rules of logic and experience, contrary to what is alleged in the ground of appeal.

4. 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 Poe-dae (Presiding Justice)