The case holding that if goods are produced using the registered design identical with or similar to the registered design of an earlier application on the basis of the later application after the trial decision to invalidate the registration of the later application becomes final and conclusive, the infringement of the registered design of the earlier application is

The case holding that even if a person having the right to register an earlier application produces an article using the same or similar design as the earlier application registered under the Design Act on the basis of the later application registered design before the final and conclusive date of the trial decision to invalidate the registration of the later application, the act of the person having the right to register the later application does not constitute an offense of infringement on the earlier application's registered design since the design under the Design Act is still protected until the invalidation or cancellation is invalidated or revoked, and if the latter applicant has produced an article after the final and conclusive date of the trial decision, if it falls under the scope of a non-exclusive license prior to the registration of the request for invalidation trial (the time of prior notice of the request for invalidation trial against the design right) as it falls under Article 51(1)1

[1] Articles 51(1)1 and 82 of the Design Act

Defendant

Defendant

Incheon District Court Decision 2000Ra1295 decided Nov. 2, 2000

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is as follows: "The defendant is the manufacturer of the light equipment." From mid- May 1, 1999 to June 15, 200, the manufacturing equipment manufacturer of the defendant's headquarters A located in Bupyeong-gu, Yancheon-gu, Seoul, the representative director of the victim B registered as D E with synthetic resin materials as the main part of the design creation and with the combination of F's shape and shape as synthetic resin as the main part of the design creation, "F," and 5,730 bits of the shape, material quality, shape, and shape similar to the overall aesthetic view of D E, are manufactured and sold, and the victim's design right is infringed upon the victim's design right by possessing the remaining 450 bit for sale."

As to this, the court below found that the defendant's act of producing more than 5,730 bits in the defendant's legal statement is valid, since the defendant's act of producing more than 5,730 bits in light of the defendant's legal statement, the part of the protocol of interrogation of the defendant's prosecution against the defendant, and the part of the statement to the effect that 450 bits are kept in custody (including the C substitute part), the police protocol, the protocol of seizure, C's complaint, the design register, and the defendant's complaint against the complainant, the Korean Intellectual Property Office 977 decision, the Patent Court 2000Hu693 decision, the Supreme Court 2000Hu1672 decision that the defendant's above defendant's registered design right is invalid, and the defendant's act of producing or selling the G-type design right, the registered design right of the defendant's registered design against the defendant, and the defendant's act of not raising the design right of the defendant's registered design, which is the defendant's registered design right of G-type or 2001.

2. Summary of grounds for appeal by the defendant;

A. Error of mistake

Although the defendant manufactured a maga book case (hereinafter referred to as "maga book case of this case") between February 22, 2000 and August 2000, which was after H the design registration of G, the defendant made from February 22, 2000 to August 2, 200, the court below erred in the misunderstanding of facts that the defendant manufactured the maga book case of this case from May 199.

B. Legal principles

① Even if the Defendant applied for and sold the G Design G Design, which he registered with H (hereinafter referred to as “instant registered design”), and the design right is effective until a trial decision becomes final and conclusive, and the act by the owner of the design right is legally protected. ② Even after October 10, 201, the right to the registered design of this case became invalid, the Defendant’s right to the registered design of this case is guaranteed the statutory license under Article 51 of the Design Act, which became final and conclusive by the Supreme Court, even if the Defendant produced the instant optical light or the instant registered design, the Defendant cannot be found to have infringed on the design right even if the Defendant did not know that the Defendant’s act was produced before October 10, 201. Furthermore, the lower court determined that the Defendant’s infringement on the design right of this case and the design right of this case was not established, and that the Defendant did not have any errors in the misapprehension of legal principles as to the infringement on the design right of the victim, and that the Defendant did not have any errors in the infringement on the design right of this case.

3. Judgment of party members

A. Grounds for mistake of facts

At the police and prosecution stage, the Defendant stated that he manufactured and sold the instant optical light scamet cases from May 1999 to September 2000 (in the investigation record 154, 213), and that he had been consistently manufactured before the registration date of the instant registered design in the court (in the investigation record, the investigation record 154, 213), and that the facts manufactured before H, which is the registration date of the instant registered design, are denied. Thus, the Defendant’s assertion that there is no evidence to reinforce the H transfer out of confession during the investigation period is with merit.

B. misunderstanding of legal principles

According to each case's decision, trial decision, and design registration certificate (153-172 pages) submitted by the defendant, the injured party B (I) filed an application for design registration as a summary of the D-registered E (hereinafter referred to as "the cited design of this case") with D-registered 20. The defendant filed an application for design registration as a summary of the D-registered 20, 200, 100, 200, 200, 200, 30, 200, 20, 200, 20, 30, 20, 20, 20, 20, 30, 20, 20, 20, 20, 20, 20, 30, 20, 20, 20, 20, 30, 20, 20, 20, 30, 20, 20, 20, 20, 20, 3, 30, 1, 20, 20.

Since the Speaker registered under the Design Act should be protected as a whole until it is invalidated or cancelled, the infringement of the registered design for earlier application by the later application is established when the later application holder uses the design identical or similar to the earlier application in the same or similar article although the later application has become final and conclusive in accordance with the lawful procedure (see Supreme Court Decision 86Do277 delivered on July 8, 1986).

As seen in this case, the victim's design of the earlier application is the registered design of the earlier application, and the defendant's registered design of the registered design of this case is the later application, and the final date of the trial decision to invalidate the registration of the registered design of this case is October 10, 2001, and there is no evidence to prove that the defendant had produced the instant light oreet case before the design registration of this case, and the completion date of the production period stated in the indictment is up to June 15, 200, so even if the defendant produced the instant light oreet case using the design identical or similar to the instant quoted design during the period from H to June 15, 200, for which the Defendant had been effectively in existence, the infringement of the design of this case is not established.

In addition, even if the defendant produced the instant optical light scamet case after October 10, 2001, which is the date when the trial for invalidation becomes final and conclusive, the defendant started his business in Korea without knowing that the registered design of this case constitutes the cause of invalidation before August 29, 2000, which is the date when the request for a trial for invalidation is registered, and thus, the defendant's act does not constitute the act of infringing the defendant's design right under the industrial policy consideration to punish his business by trust in his design right or to protect bona fide users who are in good faith with the preparation of the project. Thus, since the defendant's act is no longer unlawful since the facts charged of this case were established prior to October 10, 200, since the non-exclusive license (the time when the registered design of this case was registered prior to the pre-registration of the request for a trial for invalidation trial on the design right of this case) is made under Article 51 (1) 1 of the Design Act.

Ultimately, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of legal principles as to the infringement of design right, which affected the conclusion of the judgment, and the defendant's assertion pointing this out is justified

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is as shown in Paragraph (1). As seen earlier, the defendant is acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act, since this case constitutes a case without proof of crime.

Judges Kim Ma-ho (Presiding Judge)