A. Legal nature of the joint ownership relation of the design right

(b) Proceedings for adjudication on a design right jointly owned (Effect of an appeal filed by only one of the co-owners of a design right);

A. The co-ownership relationship of the Speaker is the so-called quasi-construction relationship corresponding to the partnership-ownership stipulated in Article 273 of the Civil Act.

B. If the design right is owned jointly, all the co-owners shall be the claimant or the respondent in the case of a trial on it. Accordingly, the procedure of trial on it shall be decided jointly to all the co-owners, and the so-called necessary co-litigation, so one of the co-owners' appeal shall also be effective for the other co-owners.

A. Article 37 of the Design Act; Article 54 of the Patent Act; Article 273 of the Civil Act; Article 53 of the Design Act; Article 99 of the Patent Act; Article 63 of the Civil Procedure Act

Supreme Court Decision 17Hu14 Delivered on October 23, 1973

Triline Industries Ltd.

Lessan Industrial Co., Ltd., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 131 dated May 29, 1981

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal are examined.

1. Article 99(2) of the Patent Act, which applies mutatis mutandis in Article 53 of the Design Act, provides that if a patent right or a patent right is jointly owned by all the joint owners, all the joint owners shall be the petitioner or the respondent of the trial, and (registration number omitted) the design right of the joint owners shall be jointly owned by the outside party and two joint owners of Lessan Industry Co., Ltd. based on the original register. Thus, the appeal filed by only one joint requester of Lessan Co., Ltd., which is not all the joint owners, shall be deemed unlawful and shall not be dismissed in accordance with Article 127 of the Patent Act, which applies mutatis mutandis in Article 53 of the Design Act.

2. Article 54(2) and (3) of the Patent Act, which is applicable mutatis mutandis under Article 37 of the Design Act, provides that where a patent right is jointly owned, each co-owner shall not transfer his/her share without the consent of the other co-owner or establish a pledge for the purpose of his/her share, and shall not grant an exclusive license or non-exclusive license to the patent right. Thus, the co-ownership relation of the design is equivalent to the “joint ownership” as provided in Article 273 of the Civil Act. Thus, Article 53 of the Design Act shall apply mutatis mutandis to the case of joint ownership of the design right, and therefore, if the design right is jointly owned, all the co-owners or the respondent of the trial shall be the applicant for the trial.

Therefore, a trial procedure on the joint ownership of a design right shall be decided jointly by all the joint owners (see Article 63(1) of the Civil Procedure Act). In such a case, given the nature of legal relations which are the purpose of the trial, it is necessary to proceed equally to all the joint owners, and therefore, it is effective for all the joint owners to benefit from the trial procedure. (See Article 63(1) of the Civil Procedure Act)

3. In light of the records, the claimant filed a request for a trial on the invalidation of the design right to the case under joint ownership with the company requested for a trial and the person other than the claimant, and the Korean Intellectual Property Trial Office (the first instance court) filed a trial on the invalidation of the design right to the case. It is obvious that only the respondent filed a legitimate request for a trial on the invalidation of the design right. Thus, the appeal filed by the company requested for a trial on the invalidation of the design right to the case is effective for the person other than the above joint parties. Thus, the court below should have rendered a trial decision on the part of the person requested for a trial on the ground that the appeal filed by the company requested for a trial and the person other than the claimant were jointly parties, even though the court below should have rendered a trial decision on the appeal to the other joint parties, it is erroneous in the misapprehension of legal principles as to the joint trial, and therefore, it is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Jeon Soo-hee (Presiding Justice)