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The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff.
Reasons
1. Basic facts
(a) 1) Date of application of the registered design of this case / Date of registration / Number of registrations: The product subject to design on May 27, 2016 / No. 869297 (2) on August 17, 2016: 3) description of the design, the main points of creation, and drawings: The design right-holder: the Plaintiff; the Plaintiff
B. The design subject to confirmation identified by the Defendant for the design subject to confirmation is related to “the removal machine of a dunes area” and its form, shape, etc. are as shown in attached Table 2.
(c) The date prior design 1A is disclosed: The name of the article on September 30, 2015 (b) is the name of the article: The drawing of the dummy area is as specified in attached Table 3;
2) Date of application 2(a) of prior designs / Date of registration / Number of registrations: A product subject to design: a description of the design on September 11, 2012 / 4, 2013 (No. 683813(b) of the skin design: a description of the design on March 4, 2013; a point of origin of the creation and drawings: as shown in attached Table 4.
1) On November 27, 2017, the Defendant asserted against the Plaintiff that the challenged design was not similar to the registered design and that the scope of the right does not fall under the scope of the registered design (hereinafter “instant adjudication”) and filed a passive adjudication on the scope of the right (hereinafter “instant adjudication”).
(2) On February 23, 2018, the Korean Intellectual Property Tribunal rendered a trial ruling to accept the above appeal on the grounds that both designs are not similar.
(hereinafter referred to as the “instant trial decision”). [The grounds for recognition] did not dispute, Gap evidence Nos. 1-3, Eul evidence Nos. 5-7, and the purport of the whole pleadings.
2. Determination as to the propriety of the instant trial decision
A. The gist of the parties' assertion is that the plaintiff does not dispute that the challenged design does not fall under the scope of the registered design of this case. Thus, the defendant does not have the interest in requesting a trial of this case.
Therefore, the defendant's appeal of this case shall be dismissed as it is unlawful.
Nevertheless, the instant trial decision falls under the scope of the registered design of this case.