[1] Criteria for determining the similarity of designs

[2] The meaning of objective creativity in a design

[3] The case holding that the two chairpersons are not similar in determining the consumers' aesthetic sense in light of the structural characteristics of the mid-term book

[1] Since the principal body of a design leads to attracting an aesthetic hobby in the mind of a person who sees it, in determining the similarity of the design, each element constituting the design should not be prepared partially separately, but it should be determined depending on whether the impressions and the impressions to attract to the people who observe and observe the whole as compared with the whole are similar.

[2] The objective creativity required by the Design Act is not a strict concept of creativity, but a combination of an aesthetic device that provides a new aesthetic sense of a inventor based on the past and present circumstances is sufficient to the extent that it is recognized as an aesthetic value different from the former design in its entirety.

[3] ㈎호 의장은 책상상판의 양 측면이 책상서랍의 측면 끝과 비슷하나 ㈏호 의장은 상판의 양 측면이 서랍의 측면 끝 부분보다 12cm 정도 길고, ㈎호 의장은 책상상판의 뒷부분이 책상의 몸통 부분의 길이와 비슷하나 ㈏호 의장은 상판 뒷부분이 몸통 부분보다 31cm 정도 길어 책상 뒤에서도 걸상을 놓고 책상을 사이에 두고 마주 앉아 서로 상담을 할 수 있도록 되어 있으며, ㈎호 의장의 책상상판과 좌우 서랍 사이에는 일정한 공간을 두고 있으나 ㈏호 의장에서는 그 사이에 직사각형 모양의 금속판으로 공간을 막고 있는 점 등의 차이가 있음을 알 수 있는바, 중역용 책상이 다양한 종류로 널리 보급되어 있고 구조적으로도 그 의장을 크게 변화시킬 수 없는 점을 고려하여 수요자의 심미감을 판단할 때 ㈏호 의장은 그 전체에서 ㈎호 의장과는 다른 미감적 가치가 인정된다고 할 것이고, 따라서 ㈎호 의장과 ㈏호 의장은 서로 유사하지 아니하다고 본 사례.

[1] Article 5 (2) of the Design Act / [2] Article 5 (2) of the Design Act / [3] Article 5 (2) of the Design Act

[1] [2] Supreme Court Decision 94Hu1595 delivered on March 31, 1992 (Gong1992, 1435), Supreme Court Decision 93Hu961 delivered on June 14, 1994 (Gong1994Ha, 1963), Supreme Court Decision 93Hu1315 delivered on June 24, 1994 (Gong1994Ha, 2106), Supreme Court Decision 94Hu609 delivered on October 14, 1994 / [1] Supreme Court Decision 90Hu1024 delivered on June 11, 1991 (Gong1991, 1926) and Supreme Court Decision 90Hu6394 delivered on June 14, 1994 (Gong194, Supreme Court Decision 94Hu9497 delivered on June 194, 194)

Hangpos Co., Ltd. (Patent Attorney Kim Young-chul, Counsel for defendant-appellant)

Appellant (Patent Attorney Seo Sang-chul, Counsel for defendant-appellant)

Korean Intellectual Property Office Decision 91 No. 419 dated April 28, 1994

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

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

1. The principal body of a design is attracting an aesthetic hobby in the person’s mind to view it. Thus, in determining the similarity of a design, each element constituting the design should not be prepared partially separately, but it should be determined depending on whether the aesthetic sense and impression to be ventilated in comparison with the whole is similar to the people’s mind, which is required by the Design Act. In addition, the objective creativity required by the Design Act is not a strict meaning creativity, but a combination of an aesthetic device that provides a new aesthetic sense of a inventor, and it is sufficient to the extent that the former president and the other aesthetic sense are recognized in its entirety (see Supreme Court Decision 94Hu609 delivered on October 14, 1994).

2. According to the reasoning of the original decision, the lower court determined that: (a) under the evidence No. 8 (a) of the respondent’s product propaganda car, accompanied by the record No. 58 et al., which refers to the original copy of the evidence No. 1 of the respondent’s product propaganda car, which appears to refer to the original copy of the evidence No. 1 of the respondent’s product propaganda car; and (b) even if the respondent is implementing the design of subparagraph (b), the respondent is deemed to have been actually using, or having the intent to manufacture, the design; and (b) even if the respondent is performing the design of subparagraph

3. In light of the records, even if based on the evidence adopted by the court below, it is not sufficient to recognize that the chairperson being carried out by the respondent is the chairperson of the No. (a). Rather, according to the evidence No. 5, the respondent is not dismissed by the court below, and there is room to view that he is carrying out the chairperson of No. (a) rather than the chairperson.

4. Meanwhile, in comparison with the records in light of the similarity between the chairman and the chairman of (b) Item (a), where both sides of the upper board are similar to the upper end of the upper board, the chairman of (b) Item (1) Item (b) Item is more than the last part of the upper board than the upper part of the upper part. The chairman of (a) Item (b) Item (b) is similar to the latter part of the upper board's upper part of the upper board's upper part, but the latter part of the upper board is more than 31 cm than the upper part of the upper board's upper part, so that he can hold consultations with each other, and the chairman of (a) Item (b) Item (b) Item (b) Item (b) has a certain space between the upper end of the upper board's upper part of the upper board and the upper part, but the latter is considerably different from the latter's upper part of the upper board's upper part of the upper board's upper part of the upper board's upper part.

5. Nevertheless, unlike the above recognition determination, the respondent acknowledges that he/she wishes to use or manufacture the design of subparagraph (a) and the Speaker of subparagraph (b) is merely a commercial transformation of the design of subparagraph (a) and thus the decision of the court below recognized as similar is insufficient to examine the design being held by the respondent, or violated the rules of evidence, or by misapprehending the legal principles on the determination of similarity of the design, which affected the decision. Therefore, the argument on this point is with merit.

6. Therefore, without further proceeding to decide on the remaining grounds of appeal, the case is remanded to the Korean Intellectual Property Office for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)