Amateur Co., Ltd. (Patent Firm C.S., Patent Attorney Ba-won et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

November 5, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on July 30, 2010 on the case No. 2009Da1460 shall be revoked.

1. Basic facts

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-2, Gap evidence 3-1, the purport of the whole pleadings

A. The registered design of this case

(1) Date of application/registration date/registration number: April 10, 2008/ November 4, 2008/ No. 51304 of 208

(b) Goods subject to cremation: Factors for cremation;

(3) Right holder: plaintiff

(d) Explanation, shape and shape of the design: The description of the registered design of this case and the description and city of the drawings are as shown in attached Form 1.

(b) A comparable design;

(1) Date of application/registration date/registration number: February 12, 1997/ December 30, 1997/No. 212960

(b) Goods subject to cremation: Factors for cremation;

(3) Right holder: Nonparty

(d) Description, shape and shape of the design: a description of the comparable design and a description and city of the major drawings in the annexed Form 2.

C. Details of the instant trial decision

(1) On June 16, 2009, the Defendant filed for a trial for invalidation of registration with the Intellectual Property Tribunal on the ground that the registered design of this case was first applied before the filing date and could be easily created from the comparative design registered, or similar thereto.

(2) After examining the above case on the invalidation of registration as 209Da1460, the Intellectual Property Tribunal rendered a trial ruling citing the Defendant’s above request for a trial on July 30, 2010 on the ground that the registered design of this case can be easily created from the comparative design first applied and registered.

2. Issues of the instant case

The key issue of the instant case is (1) whether the registered design of this case is similar to the comparative design, and (2) whether the registered design of this case can be created easily through the comparative design.

3. Whether the registered design of this case and the comparable design are similar

A. Criteria for judgment

In determining the requirements for registration of a design, the similarity should be determined not by separately comparing each element, but by whether a person in charge of observing and observing the appearance as a whole causes different aesthetic sense, and if the dominant characteristics are similar, it should be deemed similar even if there is little difference in detail (see, e.g., Supreme Court Decision 2005Hu1097, Jan. 25, 2007). Even if there is a shape or an open space necessary to secure the function of a product among its constituent elements, it should be determined by the long-term aesthetic sense that it does not cause any special aesthetic sense (see, e.g., Supreme Court Decision 2007Hu4830, Jan. 30, 2009).

B. Specific determination

The goods of the registered design of this case and the comparative design are the same as “spam for cremation.” The goods of both designs are the parts that can lead the general consumers’ attention at the time of actual transaction or use. As such, the most essential part indicating the aesthetic characteristics of the design is the shape and shape of the spam.

In preparation for both designs in relation to “the registered design of this case” and “the comparative design” and “the comparative design,” and “the two designs are similar to: (a) the entire shape of a person’s face is equal to that of “the shape below the face; (b) the shape of a plant is formed in the center; (c) a landing part is formed to be exposed to a plant; and (d) the shape of a plant is at the right edge of the left and right edge; and (c) an urgent improvement is formed; (b) the registered design of this case is at the upper end of the upper end; (a) the upper end is horizontal; (b) the registered design of this case is at a slope; (c) the upper end is at a slope; and (d) the lower part is horizontal; and (e) the shape of the square face is at the bottom of the lower part; and (e) the comparative design is at a different from the shape below the registered design of this case, which is at the bottom of the upper end and the lower part.”

Although there are some differences in the comparison results of both designs, such differences are merely minor differences in detailed composition that can only be recognized only when the relevant goods are detailed, so it is difficult to say that it has a big impact on the overall aesthetic sense.

Ultimately, the Plaintiff’s assertion that both designs are similar in their aesthetic sense as a whole, despite such differences, and that the registered design of this case and the comparative design of this case include the already known shape prior to the application for comparative design, or that the shape or the shape of the publicly known shape necessary to secure the function of goods is included, cannot be a ground for determination.

4. Conclusion

Therefore, since the registered design of this case is similar to the comparable design publicly notified before the application, the registration of this case shall be invalidated without any need to examine the remaining grounds for invalidation asserted by the defendant, and the decision of this case is legitimate as the conclusion is the same. Thus, the plaintiff's claim seeking revocation is dismissed.

[Attachment]

Judges Kim Yong-con (Presiding Judge)