Where the registered design of the other party is identical with or similar to the prior design of the applicant, whether the owner of the prior registration right may assert the invalidation of the design registration of the person having the subsequent registration right.

The confirmation of the scope of the right of a design right is confirmed that a non-registered design does not belong actively or passively to the scope of the right of the registered design, and if the other party’s design is the registered design, even if it is identical or similar to the prior-registered design of the claimant, the elements of the other party’s design belong to the scope of the right of the registered design. Thus, the other party’s design right is the result of denying the effect of the other party’s registered design. Therefore, the other party’s registration cannot be asserted the invalidation until a final and conclusive

Patent Attorney Nam-sik et al., Counsel for the defendant-appellant

Kim-Won Patent Attorney Kim Jong-chul, Counsel for the plaintiff-appellant

Patent Court Decision 7 dated October 8, 1974

The original adjudication shall be reversed, and the case shall be remanded to the Patent Trial Office.

ex officio, the confirmation of the scope of the right to the registered design is to confirm that any unregistered design mainly belongs to or passive to the scope of the right to the registered design, and the effect of the registered design right is to be determined in relation to specific facts (see Supreme Court Decision 68Hu38, Nov. 26, 1968). If the other party’s design is the registered design, it is not to determine the existence or absence of the inherent requirement of determining the scope of the contents of the registered design itself (see Supreme Court Decision 68Hu38, Nov. 26, 1968), even if it is identical or similar to the prior design of the claimant, the other party’s contents belong to the scope of the right to the registered design. Thus, it is the result of denying the effect of the other party’s registered design right, and thus, it cannot be asserted that the other party’s registration becomes invalid until the other party’s decision on invalidation becomes final and conclusive in accordance with the prescribed procedure of the Design Act (see Supreme Court Decision 68Hu56, Mar. 4, 1968). 197.197

Therefore, it is so decided as per Disposition by the assent of all participating Justices who reviewed the original adjudication.

Justices Yang Byung-ho (Presiding Justice)