In a case where a foreign company Gap filed an application for design registration as a partial design that is applied to a multimedia device, and the design for which the Korean Intellectual Property Office examiner applied for design registration, but the patent application design could easily be created by an ordinary designer from the prior design, and thus, the decision of rejection was made on the ground that the design constitutes a design under Article 33(2) of the Design Protection Act, the case holding that the patent application design is not denied creative by the prior design.

In a case where a foreign company Gap applied for design registration as part of a design applied to a multimedia terminal, such as a private drawing and right surface, but the Korean Intellectual Property Office examiner made a decision of rejection on the ground that the design constitutes a design under Article 33(2) of the Design Protection Act since the patent applicant could easily create an ordinary designer from the prior design, the case holding that the front marked part of the device applied to the prior design is composed of a rectangular type, and the front marked part of the device is composed of a rectangular type, and the eromatic body, so that the front marked part of the device applied to the prior design is combined with the eromatic body, and it is hard to see that the prior design gives such aesthetic sense while the prior design seems to lead to the body body continuously, it is hard to see that it is easy for an ordinary designer to draw a creative concept to derive the applied design from the prior design, or that it is difficult for the examiner to realize such concept with the actual design, and that it is difficult to form the eromatic body from the other parts of the prior design, even if combined the prior design.

Article 33(2) of the Design Protection Act

[Defendant-Appellee] The Head of Si/Gun/Gu Office

The Commissioner of the Korean Intellectual Property Office

August 11, 2017

1. The decision made by the Intellectual Property Tribunal on January 23, 2017 by the Intellectual Property Tribunal on the case No. 2016 won285 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. Application design of this case

1) Application number / filing date / priority date: (Application Number omitted)/ February 10, 2015/ August 11, 2014

2) Applicant: The Plaintiff

(iii)a description and drawings of the design;

As a partial design applicable to a multimedia terminal, the scope of amnesty roads and right-hand pages that express the whole form are as follows:

A person shall be appointed.

B. Details of the instant trial decision

1) On December 18, 2015, the examiner of the Korean Intellectual Property Office rendered a decision of refusal on the ground that the design in the instant case constitutes a design under Article 33(2) of the Design Protection Act, since the design in the instant case could be easily created from prior designs by an ordinary designer.

2) On January 23, 2017, the Intellectual Property Trial and Appeal Board rendered a trial ruling dismissing the Plaintiff’s petition (hereinafter “instant trial ruling”) on the following grounds: (a) a person with ordinary knowledge in the field to which the design pertains (hereinafter “ordinary designer”) could easily create the design from prior design 2 or a combination of prior design 1 and 2; and (b) a person with ordinary knowledge in the field to which the design pertains (hereinafter “instant design ruling”).

(c) Pre-designs;

1) Prior design 1 (No. 16)

A design that is applied to a portable information terminal listed in No. 740532 of the Design Registration published on April 25, 2014, and that is also applicable to a private City/Do and the right-hand map are as follows:

A person shall be appointed.

2) Pre-design 2 (No. 17)

As a design for the hands-on system, as described in No. 2392803-002 of the registration of the European Trademark Office published on January 30, 2014, the intention is as follows:

3) Pre-design 3 (No. 18)

The designs of the hand-to-face system, published by Japan on September 19, 2006, are as follows:

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 16 to 18, and the purport of the whole pleadings

2. Summary of the parties' arguments;

A. The plaintiff

1) The design of this case is a design that is applied to the front display part of multi-media devices, such as smart railing, and thus, the display division directly combines with the body body body by removing diesel engines (ju 1) and expanding the glass portion of display part to the body body part that was the diesel. The design of this case is limited to the design that is applied to the front display part of multi-media devices, such as a smart railing, so that persons observing the design can feel an organic and integrated sense.

2) The above characteristics of the patent application of this case cannot be found in the prior designs, and thus, they cannot be easily created from the prior designs as ordinary designers.

3) Nevertheless, the trial decision of this case, which was otherwise decided, should be revoked as it is unlawful.

B. Defendant

1) The prior design 1 shows the design that has removed a diesel from the front display board of the multimedia terminal and directly combined the display board with the body body body and formed a erospology in the body body part of the display board. The prior design 2 and 3 showed the design that the front board was composed of two straight angles in the front board, while the inner rectangular angle was not processed at a eroscific rate, the outer rectangular angle was the top part, while the outer rectangular angle was the one corresponding to the front shape of the display board of the application design of this case where the top part was treated at a eroscific rate.

2) From the perspective of forming the eromatic rate by downloading the top part of the display part at the erode when seen at the erode, forming a eroscopic level when seen at the time of eroscopic is not of creative nature as a general droscopic method. As such, the instant application design can be easily created by combining either 1, 2, and 3 of the prior-registered design or a combination thereof. Accordingly, the instant trial decision, as seen above, is justifiable.

3. The judgment of this Court

A. Relevant legal principles

1) Article 33(2) of the Design Protection Act provides that design registration may not be granted where a person with ordinary knowledge in the field to which the design pertains (hereinafter “ordinary designer”) can easily create a design falling under paragraph (1) 1 or 2 (hereinafter “public design”) or a combination thereof, or a combination thereof, widely known in the Republic of Korea, by design or combination thereof. The purport of the aforementioned provision is that the shape, pattern, or color of an open design or a combination thereof (hereinafter “public domain”) or a shape, pattern, or color, or combination thereof, widely known in the Republic of Korea (hereinafter “public domain”) may not be granted design registration. In light of the foregoing, even if the design is partially modified, the registered design can not be easily granted either a new or modified design or a combination thereof (hereinafter “public domain”) at least 3 times, or a combination thereof (hereinafter “public domain”), such as a combination or combination of designs, etc., which has been easily pronounced in the field of design registration or a combination thereof, and the combination or combination thereof may not be easily granted.

2) In determining whether a design is identical or similar as the requirement for design registration, even if there are parts of the shape or open space necessary to secure the function of a product among the elements of a design, so long as it does not constitute a special aesthetic sense, it shall be determined according to the aesthetic aesthetic sense, including that, unless it does not cause a special aesthetic sense. In a case where the aesthetic sense, which is sel in accordance with the direction to view, is the same and different, it shall be determined in a way that the aesthetic sense becomes the same (see Supreme Court Decision 2007Hu4830, Jan. 30, 2009, etc.).

B. Specific determination

1) Whether the front and the main parts of the indication board of the pending design in the instant application form are integrated into the same material

A person shall be appointed.

The Plaintiff asserts that the front part of the rectangular shape of the display board of the application design of this case (referring to the parts of the adjacent drawings, which are not treated by the grains at four ap points; hereinafter “the front section”) and the main part of the erogate processed with the erogate, have been integrated into the erogate material, while the Defendant asserts that both parts cannot be readily concluded to have been incorporated into the same material.

The content of the instant application for design registration alone cannot be clearly identified as to whether the front part of the display board and the interior are identical to the material of the interior, and whether the two parts are collectively formed.

However, the Plaintiff consistently asserted that both parts were formed in the same way in writing materials until the instant trial decision and the instant lawsuit were filed, and according to the notice of submission of opinions (Evidence No. 3, No. 2), the decision of refusal (Evidence No. 4, No. 3, and the instant trial decision (Evidence No. 1, No. 7) and the trial decision (Evidence No. 1, No. 7) of this case, the examiner and the administrative patent judge identified “the front form of the device to which the design of this case has been applied, wherein the grasium would be completed from the grasium,” as the characteristics of the design of this case. Considering these circumstances, it is reasonable to view that the front display part of the device to which the design of this case has been applied, as the front part of the rectangular form, and the glus body that has been combined with the glus body that has been combined with the glus body material.

2) Preparation for prior designs 1

A) Characteristics of both designs

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

B)Review

The two designs are designs applicable to a portable digital device that can wear hand-on both, the fact that the display part is directly combined with the body part without a diesel, the display part consists of a relatively flat front part of the center and the body part formed with the erobs sofed part. The base part of theme part is common in that when seen from the erobs, the top part of the body part is covered by the erobs.

However, the application design of this case is the front section of the top section, while the front section of the prior design 1, while the front section of the prior design 1, in the same way as the body part of the body part, has a considerable radius of size, while the core part of the design of this case has a considerable width (if the two sides are combined, about 1/3 of the front section of the opposite side), while the front section of the prior design 1 does not have a width. When the body part of the design of this case appears next to the front section of the design of this case is formed so that the surface has a valley, and combined with the body parts formed to have the same eroscif, the eroscific body part of the body part of the previous design 1 leads to a continuous interruption. However, while in the prior design 1, the eroscific body part of the body part of the body part of the body of the central body of the central body of the central body.

Because of these differences, the patent application design in this case gives an examiner a deep sense that the display body seems to lead continuously to the body body body, while prior design 1 gives such a aesthetic sense.

Furthermore, in order for an ordinary designer to draw the pending design from prior design 1, the width of theme must be expanded from prior design 1 to a considerable extent, and in case where a combination is made by controlling the euds of the eudio part and the eudio part of the body body part, the eudio part of the central body should not be drided, and in addition, the eudio part of the central body should not be duped. In the absence of any design motive to attempt such a modification, it cannot be said that it would be easy for a designer to either make such creative concept or realize such concept as an actual design.

Therefore, the application design of this case is not creatively denied by prior design 1.

3) Preparation for prior designs 2 and 3

A) Preparation for characteristics

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

B)Review

As seen earlier, the pending design is a design that is applied to a portable device, such as a smart set, while the preceding design 2 and 3 are all the designs that are applied to the hands-on system, it cannot be said that the field to which the design belongs exclusively coincide, but it is common in that both designs are applied to a portable device that can wear hand-on hand.

Furthermore, if the shape of the design is compared with each other, the two preceding designs 2 and 3 consisted of the front body of the central rectangular shape and the part related thereto. On the other hand, the pending design of this case is formed to expand the core of the front body to the space where the diesel is omitted and the diesel is occupied.

In addition, in the case of combining the body body body parts formed to have the same erode with the surface when seen from the side of the application design of this case, the erospheric side of the erospheric side of the erospheric side of the erospheric side of the erospheric side of the erospher, while in the preceding design 2 and 3, the lerospher of the erospheric side and the body body side of the erospheric side of

Because of these differences, the pending design in this case gives the examiner an aesthetic sense that the display body seems to lead continuously to the body body body of body, while the preceding design 2 and 3 do not seem to give such a aesthetic sense.

Furthermore, in order for an ordinary designer to draw the pending design from 2 and 3 of the prior design, a bridge should be removed from 2 and 3 of the prior design, and the body body should be formed by expanding the front glass part of the diesel, and the width of the body body shall be considerably formed, and the body body shall be formed on the surface of the body, and the body body shall be formed so as to lead continuously to the two sides in cases where both sides are combined by controlling the two sides by forming the same glass, while there is no design motive to attempt such a modification, it cannot be said that it would be easy for an ordinary designer to implement such creative concept or a claim for reimbursement as a real design.

Therefore, the application design of this case is not creatively denied by prior design 2 or 3.

4) Preparation for combinations of prior designs

In light of the characteristics of the prior design 1, 2, and 3 as seen earlier, it would be possible for a designer to change the front shape of the prior design 1 to a rectangular type, and to change the width of the body to a size equivalent to that of the diesel width, referring to the front shape of the 2,3 of the prior design 2, and the width of the diesel.

However, in anywhere in prior designs, there are no features that form a erode on the body part, which is a different feature of the design of this case, and that the erode leads to the erode formed in the body part and the continuously leading to the erode.g., it is difficult to derive the above design characteristics even if a designer ordinarily combines the erode 2 and 3 of prior designs 1.

Furthermore, considering the difference between the phrase “as shown by the supervisor to continuously lead to the body body body and the body body,” which has these features, it is reasonable to view that the ordinary designer would not easily create the pending design from the prior design.

(v) the integration of review results;

Therefore, since the application design of this case is not creatively denied by prior designs, the decision of this case, which is otherwise decided, is unlawful.

4. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Park Jong-tae (Presiding Judge)

1) Bbezzel: The body part (e.g., the next white part) fixing glass above the visual board.