[1] The scope of rights of a registered similar design, and the method of determining the similarity between a registered similar design and a basic design

[2] The case holding that (a) the Speaker does not belong to the scope of the right of the registered design in preparation for a comprehensive preparation of the basic design, the similar design, and (a) design, which are the combination of the shape and shape of the "Namnb", and the similar design

[1] According to Articles 7(1) and 42 of the Design Act, only the right holder or applicant of the design right has the right to apply for and register a similar design that is similar only to the basic design, and is not similar to the previous one. Even if a similar design is registered, the design right of the similar design is combined with the basic design and the scope of the right of the similar design cannot exceed the scope of the basic design. Thus, even if a similar design is registered, the design right of the similar design cannot be deemed to fall under the scope of the right of the basic design just because it is similar in preparation for only the similar design and the similar design, and therefore, it does not fall under the scope of the right of the similar design just because it is similar to each other. Therefore, although it does not fall under the scope of the right of the similar design just because it is not naturally included in the scope of the right of the basic design, it shall be deemed to secure the scope of the right by clarifying the conceptual similarity of the basic design specifically.

[2] The case holding that (a) the Speaker does not belong to the scope of the right of the registered design in preparation for a comprehensive preparation of the basic design, the similar design, and (a) design, which are the combination of the shape and shape of the "Namnb", and the similar design

[1] Articles 7(1) and 42 of the Design Act / [2] Articles 7(1) and 42 of the Design Act

[1] Supreme Court Decision 89Hu25 delivered on August 8, 1989 (Gong1989, 1365) Supreme Court Decision 94Hu1749 delivered on June 30, 1995 (Gong1995Ha, 2590)

Park Ho-sung (Patent Attorney Kim Jong-hee, Counsel for the defendant-appellant)

Stalking Co., Ltd. (Attorney Ui-hoon et al., Counsel for defendant-appellant)

November 21, 2003

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on August 28, 2003 on the case No. 2003Da397 shall be revoked.

1. Basic facts

[Evidence: Evidence No. 1, 2, 3, 4, 5; Evidence No. 1, 2, and 3; All the arguments

A. Details of the registered design of this case

The plaintiff is a person having the design right of the basic design of this case (registration No. 300733/9, Sep. 12, 2001, June 7, 2002) and the registered design of this case (registration No. 1201, Dec. 18, 2001, Nov. 8, 2002) as expressed in No. 2. 3 design of the basic design of this case (registration No. 3007, Sep. 12, 200) as shown in No. 2.

(a) The Chairperson;

Attached Form 3. The referenced in Attached Form 3.

(c) Quotations;

(1) Quotation 1

In the attached Form 4. The author 1, expressed in the attached Form 4. The author 1, stating that "EBM 5, Japan, is the design with the content of creation of the shape and shape of the other infinite which is attached to the above photograph, "The "The "The "The "TTTTTT", "The "The "TTTTTTTTT", "The "TTTTTTT", "The "TTTTTT"," and "The ITTTT's content is as of March 1,

(2) Quotation 2

Attached Form 4. The author 2 expressed in the Annex 4. The design 2 is the design of the combination of the shape and shape of the "recover for cooking" registered registration number No. 212024, Dec. 19, 1997, which was prior to the application of the basic design of this case, with the registration number of December 19, 197.

D. Details of the instant trial decision

The Plaintiff filed a petition with the Defendant for confirmation of the scope of active rights on the ground that the Defendant’s dominant characteristics of the instant registered design and the aesthetic sense are extremely similar to those of the Plaintiff, and the Korean Intellectual Property Tribunal deliberated the instant petition for adjudication as 2003Da397, and rendered the instant trial decision dismissing the said petition for adjudication on the grounds that it falls under the scope of rights.

E. Grounds for the instant trial decision

In light of the fact that the introduction of goods that were recently produced or are scheduled to be produced and released in the near future in accordance with the empirical rule is the practice of a trade society, it is reasonable to view that the phrase 1 written in the quotation 1 indicate that the relevant goods are being produced on the date indicated or that they were known before and after the date indicated, the quotation 1 can be deemed to have been publicly announced or worked before the application for the registered design of this case, and the quotation 2 is publicly announced before the application for the registered design of this case.

(a)The shape and shape of the Speaker is composed of a unit of heat attached to the body of the upper part, which is composed of about 45 degrees extension of the body of the upper part to the outside and about 1/2 degree height of the body of the south. The unit of this unit of heat is expressed in the shape and shape attached to the fact that two knifes are called mutually, and the knife is composed of a unit of heat attached to the body of the upper part, which is composed of a degree similar to (a) the knife, and the knife is expressed in this unit of heat, and the knife is attached to the knife pattern of a wooden flag, the shape of which is not significantly different from that of the Speaker, and the knife 2 of the knife is composed of the remaining part of the knife and the remaining part of the knife with the shape of the knife knife, the remaining part of the knife.

(a)The chairperson of heading shall, under the dominant characteristics of the design, be the chairperson's dominant feature of the remaining body that has written the whole form and the body body body body part of this body part of this body, consisting of a flasor of a photograph flasor of this body, the shape of the flasor 1 to 2 and the composition form of the house flasor of the quoted design is recognized to have a common nature of mutual creation and the depth of the entire body is not significantly different from the design (a) so the chairperson of sub-paragraph (a) shall be the chairperson similar to the flasor 1 and 2 of the quoted design.

(a) If so, the chairperson of the title of the registered design is similar to the publicly known design before the application for the transfer of the registered design, and without any need to examine whether it is similar to the registered design of this case, it does not fall under the scope

2. The party's assertion as to the legitimacy of the trial decision of this case

A. Grounds for revoking the trial decision of the plaintiff's assertion

(1) Eligibility as a quoted evidence by the author of the quoted

(A) The time of the public notice of the quoted 1

At the bottom of the last page of the quotation 1 (Kathro, No. 5), "this Kathrogs' contents will be as of March 1, 2009. The product specifications will be changed without prior notice." The photographs of each product will be somewhat different from the actual one by printing. There is no entry of the publishing date of the above Kathrogs' publications, and it can be known that the publishing date of the Kathrogs' 1 was after March 1, 2001, and it cannot be concluded as being before September 12, 2001, which is the filing date of the registered design of this case, and it cannot be adopted as the publications of the registered design of this case and the designs of subparagraph (a).

(B) Contents of the quoted 1

Even if the quotation 1’s announcement period is deemed to be prior to the application of the registered design of this case, the overall printing situation of Gap’s No. 5 is very unclear, and the Namado expressed only the form of flat and no other important form, such as the other country’s low-end annual installments, etc., are not presented, and thus, it is impossible to compare the Speaker with the other party, and thus, it cannot be deemed as the quoted evidence.

(C) Quotation 2

In addition, the cite Design 2 is clearly different from the Speaker and the cite Design 2, which is obviously similar to the Speaker and the Speaker, and it constitutes a non-similar design under subparagraph (a) and thus, it cannot be deemed as a quoted evidence, and it cannot be recognized that the public notice prior to the application of the registered design of this case for the design of this case.

(2) The similarity between the registered design of this case and the design of subparagraph (a)

The registered design of this case constitutes a new type of new string that allows the contents of the registered design of this case to make the shape of the body of the South-North that contains the body in its original form, and that the body body of the South-North that paid is created by extending the upper part of the body to the outer part of the body of the body of the South-North that is written in its original form to the outer part, and the collective space is set up to the 1/2 location of the height of the body of the South-North that is relatively long enough. As such, the chairperson of the registered design of this case and the chairperson of subparagraph (a) of the registered design of this case are merely the commercial modification of only the last part of the collective one, and thus, the dominant characteristics of the string that are extremely similar to those of the people who feel while preparing for the whole part.

B. Defendant’s assertion

(1) The similarity between the chairman and the quoted.

(a)The chairman and the quoted 1 shall be the chairman who is extremely similar to the hearts that general consumers gain at the time of physical examination in the relationship between theme and the body, as the body body are composed of about 1/2 of the body body, the body body is composed between theme and the body body, and the knife is being installed across the body, etc.

If the lid 2 is the remaining design for cooking in the shape of a cover, and the lid part of theme part is a sloped, and the lid is formed and the lid is excluded, it shall be the design extremely similar to the registered design of this case.

(2) The registered design of this case and the non-similar to (a) design of this case

The registered design of this case is formed to slope the body height of the body at a level of 1/4, the degree of 1/4 per annum is formed to a vertical plane, and the degree of 1/4 per annum is formed to a vertical plane. On both sides, the chairperson of (a) the design of this case is formed to a sloped to an outer direction of the body height of the body at a level of 1/2 of the body height, and the two reduction is expressed to the slope, and on both sides, the design of this case is installed to make the knife in the shape of the horns. The knife is completely different from the registered design of this case.

3. Determination

A. Scope of rights of similar design

Article 7 (1) of the Design Act provides that an owner of a design right or an applicant for a design registration may obtain a design registration which is similar only to his registered design or design (basic design) and Article 42 of the same Act provides that a design right of a similar design is incorporated into a design right of a basic design.

The above provisions have the right to apply for and register a similar design similar only to a basic design, and even if a similar design is registered, the design right of a similar design shall combine with a basic design, and the scope of the right of a similar design shall not exceed the scope of the right of a basic design. Thus, just because (a) the design and a similar design are similar only to a similar design, the Speaker cannot immediately be deemed to fall under the scope of the right of a basic design. Therefore, even if such circumstance does not fall under the scope of the right of a similar design (see Supreme Court Decision 94Hu1749 delivered on June 30, 195). Thus, if a similar design of a basic design is registered in determining the similarity between a similar design and a basic design, the design right of a similar design shall not be deemed to fall under the scope of the right of a basic design (see Supreme Court Decision 94Hu1749 delivered on June 30, 195).

B. Specific determination

In accordance with the above determination criteria, even if the plaintiff's assertion itself is based on health expenses, the chairperson of subparagraph (a) is extremely similar to the registered design of this case, which is the design similar to the design of this case, which is the design of this case. Even if the plaintiff's assertion is correct, such circumstance alone does not immediately mean that (a) the chairperson of this case does not directly belong to the scope of the right of the basic design of this case, and further, it cannot be deemed that the scope of the right of the registered design of this case belongs to the scope of the right of the registered design of this case. Thus, the plaintiff's claim of this case, which caused the conclusion of the decision of this case

Furthermore, the Plaintiff’s assertion is similar to the basic design of this case because (a) design of this case is within the scope of the sameness as the registered design of this case. Therefore, even if conceptually similar scope by the registered design of this case comes to fall within the scope of the right of the basic design of this case where conceptually similar scope is clearly clear, and as a result, it is naturally belonging to the scope of the right of the registered design of this case, if the basic design of this case and the design of this case are comprehensively compared with the basic design of this case and the design of this case, the basic design of this case forms the shape of the body of South and North Korea in the original form, and form the shape of the body of South and North Korea by extending the shape of the body to the outside, and form the new shape of the original body to be formed in a relatively wider way, and thus, it is not possible to support the part of the registered design of this case with the basic design of this case where it is established in the shape of the basic design of this case, compared with the part of the 4th hand.

C. Sub-committee

Therefore, (a) The Chairman does not belong to the scope of the right of the registered design of this case without any need to examine the public notice of the quoted 1.

3. Conclusion

Therefore, although the ruling of this case is somewhat inappropriate for its reasons, it is just in its conclusion, and the plaintiff's claim of this case seeking its revocation is without merit.

Judges Cho Yong-ho (Presiding Judge)