2016Hu1710. Nullification of registration (D)

Daehmanack Co., Ltd.

Patent Attorney Tae-sung et al., Counsel for the defendant-appellant

Defendant

Attorney Park Jong-soo et al., Counsel for the defendant

Patent Court Decision 2016Heo2010 decided July 15, 2016

September 3, 2020

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

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

1. Whether a design is similar should not be separately compared to each element comprising the design separately, but should be determined depending on whether a person in charge of observation of the appearance as a whole causes different aesthetic sense. If the dominant characteristics are similar, it should be deemed similar even if there are somewhat differences in the detailed aspects (see, e.g., Supreme Court Decision 2012Hu597, Jun. 14, 2012). In such cases, not only when a design is used as an expression of a product but also when the appearance at the time of transaction is used (see, e.g., Supreme Court Decision 2010Hu265, May 13, 2010). Meanwhile, in cases where the common part of a product is essential to secure the function of a product, its importance is low, and thus, the two designs are not similar immediately just on the ground that such parts are similar. However, where alternative shape exists, it is not essential to secure the function of a product as a product that can be selected, the design should not be considered as similar solely on the ground that they are related with the function.

2. In light of the above legal principles and the record, we examine whether the registered design (registration number omitted) of this case, which contains "goods as cargo vehicle mold", is similar to the prior design as stated in the judgment below.

A person shall be appointed.

A. Both designs are: ① the upper side of the body body forms a unit of a rectangular body shape at the upper side of the body body; ② the upper side of the rectangular body formed on the front side is cut back by 45∑ 45∑ 4; ③ the upper side of the body in the upper part of the body located at the upper part of the body; ④ the body in the upper side of the body in the upper part is formed by a slope in the upper part of the body in the upper part of the body; ④ the body in the upper part of the body in the upper part is formed by a slope in the upper part of the body; ⑤ the body in the upper part in the upper part of the body is formed by a slope in the upper part of the body toward the middle part; ⑤ The body in the upper part in the upper part of the body is formed by a vertical air unit at the center of the body.

B. It is difficult to view the common part of both designs as an essential form to secure the function of the tools used for cargo vehicles. In addition, in the transaction of the tools used for cargo vehicles, consumers appear to trade goods in consideration of the depth by the overall appearance of the goods, including the aforementioned common characteristics. Therefore, when determining similarity of designs solely on the ground that the common shape of both designs is a part related to the function or a part that cannot be seen after being installed, its importance cannot be evaluated lower, and the similarity of designs should be determined by the aesthetic sense, including the parts, which are observed and observed as a whole.

C. However, the common part of both designs is a part that represents a good shape that is frequently difficult to find in the previous design of the tools for trucking vehicles, and that represents the structural characteristics of the design, and thus, constitutes a part that is easy to attract consumer attention. On the other hand, the two designs are some differences, such as the location and shape of the pattern formed in a rectangular or sliding body part and the sliding body part. However, it is difficult to view such differences to the extent that they cause different depths by offsetting the similarity of the dominant characteristics of both designs.

D. Therefore, the registered design of this case and the prior design as indicated in the judgment of the court below fall under a design similar to the aesthetic sense, and thus, the registered design of this case should be invalidated.

3. The decision of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the similarity of designs or failing to exhaust all necessary

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 Kim Jae-sik, Counsel for the defendant

Justices Min Min-young

The chief Justice Justice shall mobilized

Justices Noh Tae-ok