[1] In a case where an alternative form that can be selected for the function of a product among the composition of a design exists, whether the importance of the part can be evaluated as low in determining the similarity of design (negative with qualification)

[2] Whether there is a somewhat different difference in the detailed point, but the dominant characteristics are similar to those between the designs with similar characteristics (affirmative)

[1] In a case where the alternative form that can be selected to secure the function of the goods among the constituent elements of the design exists, the shape of the part shall not be deemed an essential form in securing the function of the goods. Thus, in determining the similarity of designs, barring special circumstances, such as where the part falls under the publicly notified shape, the importance of the part shall not be evaluated lower in determining the similarity of designs.

[2] Whether the design is similar shall be determined not by separately comparing each element of the design, but by whether a person who can observe and observe the appearance as a whole causes different depths. Thus, if the controlling characteristics are similar, it shall be deemed as similar even if there is a somewhat different difference in the detailed point.

[1] Article 5 (1) 3 of the former Design Act (amended by Act No. 6413 of Feb. 3, 2001) (see current Article 5 (1) 3 of the Design Protection Act), Article 6 subparagraph 4 (see current Article 6 subparagraph 4 of the Design Protection Act) / [2] Article 5 (1) 3 of the former Design Act (amended by Act No. 6413 of Feb. 3, 2001) (see current Article 5 (1) 3 of the Design Protection Act), Article 69 (see current Article 69 of the Design Protection Act)

[1] Supreme Court Decision 2005Hu2922 Decided July 28, 2006 (Gong2006Ha, 1570) / [2] Supreme Court Decision 82Hu29 Decided April 24, 1984 (Gong1984, 88) Supreme Court Decision 96Hu43 Decided November 12, 1996 (Gong196Ha, 3581), Supreme Court Decision 97Hu2828 Decided December 22, 1998 (Gong199Sang, 234) Supreme Court Decision 97Hu3586 Decided October 8, 199 (Gong199Ha, 2332)

Plaintiff

New Hongjin Enterprise Co., Ltd. (Patent Attorney Kim Byung-jin et al., Counsel for the defendant-appellant)

Patent Court Decision 2005Heo2960 Decided July 22, 2005

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

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court: (a) on the ground that the instant registered design (registration number omitted) and the goods of the site subject to confirmation, “slive pipes for construction pipelines” are similar in that they maintain the inner diameter of toilets and wastewater from each other; (b) as they simultaneously pass through two wastewater drainage pipes different from each other; and (c) as they functioned to connect the two different landscape of the “water tank for drainage pipes,” the parallel of the parallel of the parallel of the parallel of the parallel of the parallel of the parallel of the horizontal surface to the two different shapes; and (d) on the premise that in determining the similarity of the two designs, the functional parts as above should be reduced and the remaining parts should be excluding the aforesaid parts at a lower level, and the registered design and the chair of the instant registered design are relatively similar in that they maintain the inner diameter of the main body of the relevant building, but they are relatively different in terms of their body size and shape from each other; and (b) they are mixed with each other’s upper depth of the parallel of the building and its outer part.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

In a case where an alternative form that can secure the function of a product among the elements of a design exists, the shape of the part cannot be deemed an essential form to secure the function of the product. Thus, barring special circumstances such as that the part falls under the shape of an official announcement, it cannot be readily concluded that an evaluation of its importance should be low in determining the similarity of a design. Furthermore, the similarity of a design should be determined depending on whether a person who observes the appearance as a whole does not separately prepare for each element, but makes another person feel a scarcity, and thus, if the dominant feature is similar, it should be deemed as similar even if there is a somewhat little difference in the detailed aspect (see, e.g., Supreme Court Decisions 82Hu29, Apr. 24, 1984; 97Hu3586, Oct. 8, 199).

In light of the above legal principles and the records, “slves for building pipeline”, which are goods of the registered design of this case and the design subject to confirmation, is installed in the form of concrete structure manufacturing structure partitioning the floor of a building with a certain space, and the inside of the slves can be secured inside the body part, even if the inside of the slves are installed in concrete with concrete, if two drain pipes coming from the above side after the completion of the slves construction of concrete, pass through the inner space of the body part where the closing surface is removed, and can be connected to the two different landscape of the slves for underground pipes. Thus, in order to fulfill these functions, the slves for building pipeline, which are the goods of both designs, should not be seen as having a shape necessarily, and the shape of the slves for building pipeline, which can be different from the whole slves in consideration of the same function.

Furthermore, in this case where there is no evidence to regard the above-mentioned shape as the publicly known part prior to the application of the registered design of this case, the shape of the studio commonly appearing in both sides of the design is the dominant feature which brings the attention of the seer well to the seer. Thus, the two chairpersons are similar designs without any difference in the depth of the body as a whole. Even though the design of this case subject to confirmation differs specifically in the external side of the body, the shape and shape of the closed surface, the height of the flud office, the shape, shape, number, and the installation location of the high information source, etc., as stated in the judgment of the court below, even if the design of this case is in comparison with the registered design of this case, it is difficult to view that there is any difference in the overall depth of both chairpersons due to such detailed differences.

Nevertheless, the court below concluded that the degree of importance should be low on the ground that the shape of the flat is caused by the functional demand of goods in determining the comparison of both designs, and determined that the design subject to confirmation is not similar to the registered design of this case due to the detailed differences between both designs. Therefore, the court below erred in the misapprehension of legal principles as to the scope of the right of the registered design and the determination of the similarity of designs, which affected the conclusion of the judgment, by failing to exhaust all necessary deliberations, and by failing to exhaust all necessary deliberations. The ground of appeal assigning this error has merit.

3. Therefore, 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 Park Si-hwan (Presiding Justice)