In a case where the design right-holder A of the design right of “ 2” filed a petition for registration invalidation trial against “ ” of the registered design right-holder B of the design right, on the ground that the registered design falls under Article 5(1)3 of the Design Protection Act, the case holding that the registered design is not similar since the aesthetic sense different from the registered design 2 as a whole is different from the registered design.

Article 5 (1) 3 of the Design Protection Act

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

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

Patent Court Decision 2012Heo4858 Decided November 9, 2012

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the second ground for appeal

The similarity of designs should be determined not by separately comparing each element of designs in part, but by the aesthetic sense that people feel in comparison with the whole. However, in a case where the common part of both designs is the basic or functional form of the goods required as a matter of course, or a design, the importance of the two designs must be evaluated low, and such similarity cannot be immediately deemed as similar solely on the ground that these parts are similar (see Supreme Court Decision 2003Hu1666, Oct. 14, 2005). In determining similarity of designs, the aesthetic sense by the appearance at the time of use as well as the trade of the goods expressed in the design should also be considered (see Supreme Court Decision 2002Hu1218, Dec. 26, 2003). However, the similarity of designs should be determined relatively by the Supreme Court Decision 196Hu1484, Nov. 196, 209).

A person shall be appointed.

A person shall be appointed.

We examine in light of the above legal principles and the record. The registered design of this case (registration number No. 571603) and the comparative design 2 in the holding of the court below, as seen in the right-hand photographs and drawings, are identical to the design of this case (registration number No. 571603) and the comparative design 2 in the holding of the court below, as seen in the right-hand photographs and drawings, the whole external shape is a rectangular shape, and a long door door is formed so that they can come into contact with the cover opening and the bed, each column formed in the cover opening and the bed part is arranged under the upper side and upper side, and the part is composed under the lower part. The cover attachment is commonly formed in the way that the cover opening is protruding the upper side, and the home is formed in the way that the bed part is left under the lower part, but these parts fall under the basic shape of "the basic shape or material shape" that has already been widely used in the two design field and should be evaluated as the shape of the package.

In addition, the registered design of this case is composed of four horizontal lines with knife and knife with knife with knife and knife with knife with 6 vertical lines. The entrance of each knife with knife form as a whole, and the passage of each knife form with knife with knife with knife with the upper part of the cover.

However, in determining the similarity of a design, it is necessary to consider the depth of the shape at the time of the use of the product in addition to the depth of the shape at the time of the transaction of the product. Also, since the design of the "Mealalalalalalalalal container" was widely used from the old date and has been created in various ways, and it is difficult to change substantially in structure, the similarity scope of the design should be relatively narrow. Considering these circumstances, in comparison with the two designs, the registered design of this case should be seen to have relatively narrow scope. Considering the above, in the case of both designs, the shape outside the salvbles of the opening of the cover and the salvbles of the cover are the same half-dimensional shape, compared to the shape at the same time, the salvbles of the cover are both different shapes from the shape at the time of the comparison, and thus, the difference between the two salvalalalalary design at the time of the combination and the shape at the same time, the difference between the two sal.

Nevertheless, the lower court determined that the two designs are similar with each other, focusing mainly on the basic form that forms the framework of both designs with an excessive difference as above. In so doing, the lower court erred by misapprehending the legal doctrine on determining similarity of designs, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)