2012 Gohap87022 Prohibition, etc. of Infringement of Design Right

1. ○○○;

Representative****

2. △△△△;

*******

3. Oral stock company.

Jung-gu Seoul Central-dong 3

This representative director**

[Judgment of the court below]

Hanmi Pharmaceutical Co., Ltd.

- Pluxan Habane 893 - 5

Representative Director** *

Law Firm (Bae, Kim & Lee LLC, Attorneys After Dong-dong, and South-gu, Counsel for the defendant-appellant)

Foreign Trades

March 6, 2013

March 29, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The defendant shall produce, transfer, lend, import, or transfer each product listed in the separate sheet No. 1.

or subscription for a loan (including exhibition for transfer or lease), and a list in the attached Form

Marks listed in paragraph (2) shall be displayed on the products listed in paragraph (3) of the attached Table or their packaging and publicity advertisements.

or to transfer or deliver the above product bearing the above mark, or display, export or import it for that purpose; or

the defendant's office, factory, warehouse, or place of business, or the defendant

a. The finished product and semi-finished product of each product listed in paragraph 1 of the attached Table in possession through a third party;

The body shall be discarded.

Reasons

1. Basic facts

A. The plaintiffs △△△△, a corporation in the United States, whose main purpose is to develop and sell a number of drugs, including Abagra (Viagra; hereinafter referred to as 'non-Abagra'), which is non-party 1 who is a corporation in the United States of America, for the development of medicine. The trademark indicated in the attached Table 9 (the registration number No. 60873, (three-dimensional trademark, color trademark; hereinafter referred to as the "Plaintiff trademark") of this case, which is designated as the designated product, is the trademark indicated in the registered trademark of this case (the registration number No. 60873, 30, Nov. 6, 2003; 2005, upon obtaining the registration thereof on Feb. 17, 2005) and the registration number No. 979, Mar. 19, 200 and the registration number No. 9994, Feb. 4, 2005).

26. The Plaintiff’s design was registered. On October 19, 2005, the Plaintiff’s design was registered as Nonparty 1 and each New Factor, and was finally transferred to Plaintiff ○○○ on July 30, 2012.

3) As a subsidiary company in the Republic of Korea of Plaintiff △△△△, Plaintiff ○○○ is exclusively importing and selling medicines produced by Plaintiff △△△△△△ from around 1998. 4) Plaintiff ○○○○ has the design right, Plaintiff △△△△ has the trademark right, and Plaintiff △△△△ was the packaging form of Non-Agra (hereinafter referred to as “Plaintiff’s product”), which is an instrument for treatment with visual disorder imported and sold by Plaintiff △△△△△△, is the package of the Plaintiffs’ products.

B. The plaintiff △△△ was developed around the end of 1997 by the plaintiff △△△△, which is the well-known 1 of the "Viagra", "PFIZER", and the product for treating the mechanical function disorder, and on March 27, 1998, the plaintiff △△△△△ was approved to sell the product inside the United States of America from the food pharmacy of the United States of America (FDA) on March 27, 1998 and approved to sell the product in the United States.

4. From July, only a person who received a medical prescription from a doctor began to be put on the market at a pharmacy. Unlike the existing regulations, it is known that the efficacy is superior to that of other weather disorder treatment systems and that the efficacy is less excellent than that of other weather disorder treatment systems and less adverse effects have been paid attention from each country around the world since the commencement of the sale. Upon the commencement of the sale, the sales led the scarcity global.

2) In Korea, these figures were also in the same way in Korea. In Korea, due to the misunderstanding that Koreans are forced to give rise to the emotional distress not for the development of Abia but for men, the domestic market was more interested in the world, and the Korean media also reported articles about Bagra every day. Ultimately, the Korean Food and Drug Administration approved the sale of Bagra from October 199 to the point of time after undergoing various clinical tests on Bagra, and then approved the sale of Bagra in a pharmacy.

3) Accordingly, “Viagra” and “Bagra”, which are the registered trademark of Plaintiff △△△△△, are goods marks referring to the origin function disorder treatment chemicals developed and sold by the said Plaintiff, and “PFIZER”, which are the above Plaintiff’s registered trademark and trade name, were widely known in Korea as goods marks and business marks referring to the drugs produced by the said Plaintiff.

C. On May 18, 2012, the Defendant: (a) registered sales 50 milligrams of 'sale 50 milligrams' (hereinafter referred to as 'Defendant Product 1') with the appearance as shown in [Attachment List No. 1] and 'sale 100 milligrams' (hereinafter referred to as 'Defendant Product 2', 'the combined 'Defendant Product 2', 'the product') and produced and sold the product' with the mark of pro rata No. 1 on May 18, 2012; and (b) the packaging form is as shown in the Defendant Product Packaging.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 52 (including branch numbers), Eul evidence 1, 2, 15, 16 (including branch numbers), and the purport of the whole pleadings

2. Determination as to whether a design right has been infringed

A. The parties’ assertion 1) Whether the Plaintiff ○○○○○’s assertion is similar to the design should be determined depending on whether the overall appearance of the Plaintiff ○○○○○○ has caused a person who observess the appearance to feel a different aesthetic sense. In applying these standards, the Defendant products infringe the Plaintiff ○○’s design right.

나 ) 우선, 양 디자인 모두 다이아몬드 형상으로 푸른빛의 색상을 지니고 있어 매우 유사한 심미감을 주고 있다. 일반적인 알약의 경우 주로 흰색의 원형 또는 타원형의 형상을 지니고 있는 반면, 원고 디자인은 일반적인 알약과는 달리 푸른빛의 다이아몬드 형상을 지니고 있으며, 이러한 원고 디자인의 독특한 형상 및 색상은 피고 제품들에서도 그대로 찾아볼 수 있다. 뿐만 아니라, 양 디자인은 다이아몬드의 각 모서리가 뾰족하지 않고 둥그스름하게 처리된 형태인 점 및 다이아몬드의 가로 / 세로 비율이 약 1. 35 ~ 1. 36 정도 되는 점까지 매우 유사하여, 양 디자인으로부터 느껴지는 전체적인 심미감이 극히 유사하여 서로 구별이 되지 않을 정도이다. 따라서 원고 디자인과 유사한 피고 제품들의 제작, 판매 및 광고 행위는 원고 디자인의 디자인권 침해 행위에 해당한다 .

C) As to the allegation by Plaintiff ○○○, the Defendant asserted that the Plaintiff’s design was not new as a publicly known design. However, since the Plaintiff’s publicly known design appears only in the city/Do or flat/slow level, it cannot be confirmed as to the overall shape of the publicly known design, and even in accordance with the empirical rule, it is difficult to compare the Plaintiff’s design with the Plaintiff’s design because it is difficult to grasp the substance of the publicly known design. Moreover, there is no almond shape with the Plaintiff’s design, among publicly known designs, inasmuch as the color of the Plaintiff’s design is a highly distinctive color that is not commonly used in the general known design, a combination of distinctive colors may lead to the Plaintiff’s new aesthetic sense sufficiently. Accordingly, the Plaintiff’s design does not lose newness by either the known mar design and the mar drug known.

D) The easy creation provision (Law No. 5354, August 8, 1997, the Design Act, Law No. 5354, et al.) at the time of filing an application for

22. Partial amendments, as well as the implementation of March 1, 1998, determine whether creation is possible only on the basis of the domestic well-known type and combination thereof. Thus, unless it is proven that the well-known type was in a domestically known form at the time of the filing date of the Plaintiff’s design, the creativeness of the Plaintiff’s design cannot be denied solely on the fact that the well-known type was partially known.

2) The Defendant’s assertion that the design of the Plaintiff was in the shape of a lush color. The Defendant’s products are similar to the lush pattern, and the overall characteristics of both designs are clearly distinguishable, and the shape of the Defendant’s products are not similar to the Plaintiff’s design, given that the Plaintiff’s design and the Defendant’s products are clearly distinguishable from the overall characteristics of both designs. The Plaintiff’s design and the Defendant’s products were used for the general public in various shapes of shapes, such as a three-dimensional, round, the original form, the oil model, and the lux, etc., for a long time, and most of the Plaintiff’s design have already been launched. Considering the essential and functional features of the luxar design, the criteria for determining the similarity range of both designs in this case should be strictly applied.

B) The Plaintiff’s design is merely a combination of color color, which is a color widely used in medicine, prior to the filing date of the application, and is similar to a design publicly known prior to the filing date. As such, the Plaintiff’s assertion of infringement of design right by the Plaintiff constitutes an abuse of rights.

C) In addition, the Plaintiff’s design added a little string to a well-known shape and shape, one of the well-known shapes and shapes widely used in the pharmaceutical industry. The Plaintiff’s design application is also filed by combining a color, which is one of the colors widely used in the pharmaceutical industry, and thus, the Plaintiff’s assertion of infringement of design right constitutes abuse of rights.

D) The Defendant is a registered right holder under Article 637251 of the Registration of Design for the same design as the Defendant’s product, and the use of the Defendant’s design based on its registered design does not infringe the Plaintiff’s right.

B. The design of a drug is essential to ensure the stability of the drug and to administer accurate dosages. The design of a drug must be made to ensure that the physical and chemical properties of the drug are considered optimal validity, maximum stability, and highest accuracy in the production of the drug. In addition, the design of a drug affects its efficiency in its production, the design of a drug with a knife may pollute the drug by destroying the production facility and by destroying the production facility, and the design of a specific pattern may be easily damaged in itself.

B) The basic design of food and beverage is composed of two shapes (Table Face) at the time of the discharge of Alba, and the part (and (and) above and the part (up) above and below the above columns at the time of the discharge of Albabab, and the part (up) of the columns at the time of the discharge of Albababa. The basic form of Albabababa was widely used in various forms, such as the shape, caps, active type, three types, round type, square, square, rectangular type, rectangular type, rectangular type, rectangular type, rectangular type, Damonmond type (oil model), Mamond type (Mamond type), Maba-type, Mad-type, Mad-type, Mad-type, Mad-type, Mad-type, and so on. Since then, the change in the size and proportion of fabry in the shape (Table-type) in the shape of the above basic form, the proportion of the fabre-type and the shape (up).

[Ground for recognition] A without dispute, Eul's statement of evidence No. 28 and the purport of the whole oral argument) design similarity should be determined not by separately comparing each element, but by whether a person who observess and supervisess the appearance of the design to feel a different aesthetic sense, and if the dominant characteristics are similar, it should be determined as similar even if there is a little difference in detail. In this case, the similarity of design should be determined from the perspective of whether there is a difference in the aesthetic sense of ordinary consumers by understanding and observing the most easily leading part of the humanism as the essential part (see Supreme Court Decisions 2005Hu1097, Jan. 25, 2007; 2010Do12633, Mar. 24, 2011).

B) Meanwhile, the designs of designated goods have been often used on the old date in a simple form, and many designs have been designed in many ways, and the designs are structuralally designed (see December 2004).

31. The name was changed to "design" by Act No. 7289 (hereinafter referred to as "design"), and if there is a limit to the changes in hobbies or prevalence, the similar scope of a design shall be considered to be relatively narrow. On the basis of past and existing designs, there is a combination of an aesthetic device that causes a new aesthetic impression of a inventor, and it shall be sufficient to the extent that it recognizes an aesthetic value different from the previous design (see Supreme Court Decisions 95Hu873, Dec. 22, 1995; 95Hu1449, Jun. 28, 1996; 201Do12633, Mar. 24, 201).

C) As seen earlier, many designs have been created in a simple form from old days, and functionally, the design can not be significantly changed, and the extent of changes in hobbies or prevalence is limited. Thus, if the design is not recognized as a whole and the design is not identical or similar, the similarity scope of the design should be relatively narrow. However, if the design is not acknowledged as a whole, it should be seen as the same or similar design.

C. Whether the scope of the right is not recognized due to the lack of newness of the Plaintiff’s design

1) If a registered design is identical or similar to a registered design or a design published prior to the filing of an application for registration invalidation trial, the scope of the right may not be recognized regardless of whether the registered design and the design claimed to have been infringed are identical or similar to the registered design (see Supreme Court Decision 9Do1866, Sept. 14, 2001). Meanwhile, in a new judgment of design, the scope of publication is not sufficient if it can be compared to the registered design (see Supreme Court Decision 9Do1866, Feb. 3, 2001) and if it is not sufficient to refer to all materials to the extent that it can be easily seen by a person who has ordinary knowledge in the field to which the design belongs, and if it can be seen to the extent that it can be compared to the registered design.

C) In the case of a design consisting of a combination of shapes and shapes, which are not colors, any color may be taken, and designs with similar shapes and shapes may be deemed similar regardless of their colors (see Patent Court Decision 9Do178, May 13, 1995). In addition, if the elements constituting a design include not only the shape and shape, but also the color, and if the comparison two designs are identical with the basic color color, such as the location and size of the parts that are identical in shape and shape and the part that are colored in color in the composition of colors, barring special circumstances, it cannot be deemed that the specific color of the two designs has different colors, barring special circumstances (see Supreme Court Decision 9Do178, May 13, 1995).

10. Around 26. 205Ma977 dated 2005. see, e.g., Supreme Court Order 2005Ma977.) Even if designs consisting of the same and similar shapes without shapes have different colors, barring special circumstances, it cannot be deemed that there is a difference in the aesthetic sense solely on the fact that other colors have been selected. 2) The comparative design is subject to comparison design 1 (1) distribution date/publication publication: 1 (1) comparative design: 1 (1) commercial design; 3) 1995, 3) American Puamasiacal Asia (hereinafter referred to as "U.S. Pharmaceutical Association") and the design is one of the most widely used designs as a design under the explanation and drawings of the design: