[1] Criteria for determining similarity and creativity of a design

[2] The case holding that the registered design and (a) design are similar on the ground that there is no difference between the registered design and (a) design in overall aesthetic sense

[1] Whether a design is similar or not shall be separately compared to each element, but shall be determined depending on whether a person who observess the appearance as a whole causes different aesthetic sense. If the dominant characteristics are similar, it shall be deemed similar even if there is little little difference in detailed points. In addition, if objective creativity required by the Design Act is not a unique feature not similar to all previous or existing features, it shall be based on a high level of originality, i.e., a unique feature that is not similar to all previous or existing features, and if an aesthetic device that combines a device with a device that is not similar to a previous and existing one is recognized as having an aesthetic value different from the previous one, it may obtain a design registration under the Design Act if it is recognized as a whole, but even if a part of it is recognized as creative, if it is not recognized as a aesthetic value different from the previous and present one, it is merely a commercial and functional modification of a publicly known device, and it shall not be recognized as creative, on the other hand, if a change in the form of design is naturally caused by its function or characteristics, such as the product expressed in comparison, it shall be determined as a whole after the following changes.

[2] The case holding that the registered design (a) is similar on the ground that there is no difference in overall aesthetic sense because the difference is merely a so-called commercial and functional transformation that can be easily created if the difference is a person with ordinary knowledge in the field concerned, although the design is partially different from the registered design (a).

[1] Article 5 (1) 3 and (2) of the former Design Act (amended by Act No. 5354 of Aug. 22, 1997) / [2] Article 5 (1) 3 and (2) of the former Design Act (amended by Act No. 5354 of Aug. 22, 1997)

[1] Supreme Court Decision 95Hu873 delivered on December 22, 1995 (Gong1996Sang, 548), Supreme Court Decision 96Hu443 delivered on November 12, 1996 (Gong1996Ha, 3581), Supreme Court Decision 97Hu2828 delivered on December 22, 199 (Gong199Sang, 234)

claimant

Appellant (Patent Attorney Noh Jeong-ok, Counsel for defendant-appellant)

Korean Intellectual Property Trial Office Decision 96Da156 dated September 30, 1997

The decision of the court below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

원심심결 이유에 의하면 원심은, 이 사건 등록의장과 (가)호 의장의 각 물품은 다 같이 테이블 또는 상(상)에 다리를 연결하는 연결구 내지 접철구로서 동종의 물품이고, 다음 위 물품은 크게 몸통 부분, 테이블 또는 상에 연결되는 전·후단의 리이브 부분 및 상다리와 접속하는 부분으로 나누어 볼 수 있는데, 그 구조나 기능적 특성상 상다리와 접속하는 부분이 접힐 경우에 형성되는 'T'자형 몸체의 기본적인 형상은 양 의장이 속하는 분야에서 이미 공지된 것이므로, 양 의장의 유사 여부는 의장적 변형이 가능한 부분을 중심으로 하여 대비 판단하여야 할 것인바, 이 사건 등록의장은, ① 몸통부가 상단 부분은 단순한 'Π'형이고 하단 부분은 개구(개구)된 형상과 모양이며, ② 전단의 리이브는 폭이 크고 후단의 리이브는 두 번에 걸쳐 절곡된 형상과 모양이고, ③ 상다리와 접속하는 부분은 몸통과 같은 단순한 형상이 접철된 것이지만 구체적으로 특정되지 아니한 형상과 모양임에 비하여, (가)호 의장은, ① 몸통부의 상부 및 전단 부분이 3단으로 굴곡되게 형성되어 있고, ② 리이브의 형상, 모양에 있어서도 전·후단 모두 폭이 좁고 그 좌우 끝단을 세 구분으로 둥굴게 형성하였으며, ③ 특히 상다리와 접속하는 부분은 그 상단의 중앙 부분만을 개구하고 그 하단부는 끝 부분을 타원형으로 한 형상과 모양이므로, 양 의장은 상다리와 접속하는 부분이 접힐 때 생기는 'T'자형의 기본적인 형상에 있어 일부 유사하기는 하나, 위와 같은 차이점과 위 물품은 구조적, 기능적으로 의장을 크게 변화시킬 수 없다는 점을 고려할 때, (가)호 의장은 전체적으로 이 사건 등록의장과는 보는 사람의 마음에 환기될 미감과 인상이 서로 달라 이 사건 등록의장과는 다르다고 할 것이어서 이 사건 등록의장의 권리범위에 속하지 아니한다고 판단하였다.

However, the similarity of a design should be determined depending on whether a person who is deemed to observe and observe the overall appearance of each constituent element, instead of separately comparing each constituent element, causes different aesthetic sense. If the dominant feature is similar, it should be deemed similar even if there is little little difference in detail. Furthermore, objective creativity required by the Design Act is not a unique feature that is not similar to all in the past or existing circumstances, i.e., a high level of originality, i., a unique feature that is not similar to all in the past or existing circumstances. In addition, if an aesthetic device that combines a new aesthetic device and thus recognizes the aesthetic value of the former design from the whole to the extent that the former design is recognized, a design can be registered under the Design Act. However, even if creativity is partially recognized, if it is not recognized as a whole from the past and the present design, it is merely a commercial and functional transformation of a publicly known device, and thus, creativity cannot be recognized as a whole if it is not recognized as a satisfy value different from the previous design (see, e.g., Supreme Court Decisions 96Hu43, 28, etc.).

According to the records, since the registered design of this case is formed on both sides of the upper part of the upper part of the upper part of the above body which is the center of the product and the upper part of the upper part of the above body (the corresponding part of the original trial decision) is composed of "T" type, and the shape of "hringe part (which is connected to the upper part of the original trial decision) formed by combining the above body with the upper part of the "T" type, is known that the shape and shape of the "bridge connected to the upper part" formed by the front part of the upper part of the upper part of the above body, and it is difficult to view that there is a difference between the upper part and the upper part of the building of the upper part of the "T" type, which is the combination of the shape and shape of the "T" shape that is combined with the upper part of the front part of the above body and the shape that is combined with the upper part of the building of the upper part, and therefore, it is difficult to see that the shape and shape of the shape that is combined with the upper part.

Nevertheless, the court below's decision that the "T" body was already published in the process of determining the comparison of both designs, and that the registered design of this case was prepared for the same state before and after the change of both designs, and without considering the whole as a whole, the shape and shape of the hing part, and that (a) the hing part was compared with the registered design of this case, and that (a) the hing part was a design that is not similar to the registered design of this case, and that the hing part was a design that is not similar to the registered design of this case, thereby misunderstanding the legal principles as to the determination of the similarity of designs, thereby affecting the conclusion of the decision.

The appeal pointing this out is with merit.

Therefore, the original decision shall be reversed, and the case shall be remanded to the Patent Court corresponding to the original decision. It is so decided as per Disposition by the assent of all Justices who reviewed the case.

Justices Song Jin-hun (Presiding Justice)