A. Criteria for determining whether a design is new and creative, which is the requirement for design registration, and whether a design may be registered unless it is merely a simple combination that expresses the shape and shape of a design already known in the Republic of Korea as its material (negative)

(b) The case holding that it is difficult to view that the registered design may not cause a new decoration to the general consumers in preparation for the pre-registered quoted design in comparison with the prior-registered quoted design;

A. The term “design” means the shape, pattern, or color of an article or a combination thereof, which causes an aesthetic sense in view of the view. As such, a design is deemed to be of an aesthetic value different from the previous design and whether a new and creative nature required by the Design Act as a requirement for design registration should be determined depending on not only the shape, pattern, color, or combination thereof to express the design, but also on whether general consumers of the article could feel a new aesthetic sense, considering the use of the article to be expressed. Thus, if the filed design is merely a simple combined expression of the shape and pattern of well-known, and it is not possible to obtain a design registration unless the registered design satisfies a new aesthetic value.

B. The case holding that since the cited design is applied for and published in the Utility Model Gazette, and it is published in Korea prior to the application of the registered design, and the shape connecting the network sites in six angles is widely known domestically, and it cannot be deemed that there is a new aesthetic value as a ginseng plant or a spawn, compared to the pattern quoted in the shape connected to the network sites, and even if the registered design has a two straight lines supporting the network sites such as the quoted design, it seems that it is merely a mere commercial transformation, and even if the registered design is observed in preparation for the whole, it is difficult to view that the registered design has a new spawnive aesthetic impression for ordinary consumers compared to the cited design.

Article 5 of the Design Act

A. Supreme Court Decision 80Hu28 delivered on June 22, 1982, 83Hu59 delivered on April 10, 1984 (Gong1984, 886) 86Hu74 delivered on September 22, 1987

Patent Attorney Cho Chang-hee, Counsel for the plaintiff-appellant

Patent Attorney Lee Jae-soo et al., Counsel for the defendant-appellant and one other

Korean Intellectual Property Office trial decision 91 dated June 29, 1991

The original adjudication shall be reversed.

The case shall be remanded to the Korean Intellectual Property Office Appeal Office.

The grounds of appeal by the claimant are examined.

1. The judgment of the court below

The court below held that the objective creativity required by the Design Act does not refer to a strict concept of creativity, but it is reasonable to interpret that a design can be registered under the Design Act if a device combining an aesthetic device that gives a new aesthetic sense to a designer on the basis of the past and present circumstances is recognized to the extent that the previous design is recognized to have a aesthetic value different from the previous design. The cited Speaker has the same shape, pattern, or shape as the so-called so-called so-called so-called so-called so-called the so-called so-called so-called so-called “a person’s design”, and the registered design is the same shape, pattern, or shape as the so-called “the so-called so-called so-called so-called so-called “the so-called so-called so-called “a person’s design” and the Speaker has no different character from the so-called “the so-called so-called so-called so-called so-called “the so-called so-called two or more-calledly-called one’s own design.”

2. However, since the design refers to the shape, pattern, or color of a product or a combination thereof, which causes aesthetic sense in view of the view, a design is deemed to be of an aesthetic value different from the previous design, and thus, whether the Design Act is new and creative as a requirement for design registration should be determined depending on not only the shape, pattern, or color of a product to express the design, but also the combination thereof, the purpose of the product to be expressed by the design. In light of the use of the product to be expressed, etc., it is reasonable to deem that the filed design is not eligible for design registration if it is merely a simple combined expression of the shape and pattern of well-known design in the previous country as well as a new aesthetic value (see, e.g., Supreme Court Decisions 80Hu28, Jun. 22, 1982; 83Hu59, Apr. 10, 1984; 83Hu274, Sept. 27, 1987).

According to relevant evidence and records, the cited Speaker cited by the court below is expressed in the Utility Model Gazette on Aug. 23, 1984, which was published on Oct. 20, 1986, which was made public on Oct. 8, 1987, and registered as a utility model on Jan. 8, 1987, which had already been published in Korea before the application of this case was made on Jan. 23, 1987. The shape connecting the net sites of this case to six shapes is widely known domestically, and it cannot be said that there is a new aesthetic value as a ginseng launch or triplos, compared to the cited design connected to the cited design. In addition, if the registered design of this case was installed in several ways supporting the network sites as the cited design, it is difficult to view that the registered design of this case was merely a mere modification to the general consumers, and even if it is difficult to view it as a whole, compared with the mere modification to the general consumers.

Thus, the registered design of this case can be easily created by a person who has ordinary knowledge in the field to which the design belongs by combining the quoted design publicly known in Korea and the shape and pattern widely known in Korea before the application for a registered design, and thus, it cannot be deemed a new and creative design. However, the court below held that the registered design of this case is a creative design which is entirely different from the quoted design. Thus, the court below did not err in matters of law by misapprehending the legal principles on the originality and creativity of the design, and it is obvious that such illegality affected the trial decision, and therefore, there is a reason to point this out.

3. Therefore, the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-ho (Presiding Justice)