205Heo10312 Verification of Scope of Right (D)

Kim Jong-ho

Chicago-si

Patent Attorney Lee Young-young, Counsel for the defendant-appellant

1. Kim Dong-dong;

Sungnam-si

2. Taxide iron; and

Bucheon-si

3. A stock company for development of two industries;

Gangnam-gu Seoul Metropolitan Government 105 - 7

Representative Director Kim Hong-gu

Patent Attorney Lee Young-young, Counsel for the defendants

may 3, 2006

March 31, 2006

1. The plaintiff's claim is dismissed.

2. The litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on October 28, 2005 by the Intellectual Property Tribunal on the case No. 898 shall be revoked.

1. Details of the trial decision;

A. The Defendants filed a claim against the Plaintiff, the right holder of the registered design “protective fence” as indicated in the attached Table 1 (hereinafter the registered design of this case), claiming a trial to confirm the scope of the right because the design as indicated in the attached Table 3, which they conducted, differs from the registered design of this case, does not fall under the scope of the right.

B. The Intellectual Property Trial and Appeal Board rendered the instant trial ruling on the ground that the instant registered design and the instant design subject to confirmation are different designs that appear to be different from each other, and that the challenged design does not fall under the scope of the right to registered design of this case, on the grounds that the challenged design does not fall under the scope of the right to registered design of this case.

【Ground for Recognition: No dispute exists】

2. Determination as to the legitimacy of the trial decision

A. The plaintiff's assertion

The registered design of this case is similar to the registered design of this case. Thus, the scope of the registered design of this case should be determined by considering not only the registered design of this case but also similar one design of this case. The design of this case similar to the registered design of this case and the design of this case subject to the design of this case, which are similar to the registered design of this case, are the shape and shape of the principal parts, such as the fact that the string and the string of the string of the string of the string of the string and the upper part of the string and the fact that the string of the strings are linked to the 2nd vertical lines of horizontal width, which are small in diameter, and the fact that the stringing of the 2nd horizontal line to the string of the vertical pole is situated in the upper part of the string of the vertical pole, or the fact that the string is situated in a certain part for a long time, and the design of this case is similar to the registered design of this case as a whole.

B. Determination

(1) Determination criteria

Article 7 (1) of the Design Protection Act provides that an owner of a design right or an applicant for a design registration may obtain a design registration for a design similar only to his registered design or a design applied for registration (basic design), and Article 42 of the same Act provides that a design right similar to a similar design referred to in the above provision is incorporated into the design right of the basic design. Since the scope of a right to a similar design does not exceed the scope of the right to a basic design, the mere fact that only the challenged design and the similar design are similar in preparation for only the similar design does not immediately fall under the scope of the right to a basic design (basic design). However, although the challenged design does not fall under the scope of

30. It should be deemed that similar designs secure the scope of rights by specifying the conceptually similar scope of the basic design. Thus, in determining the similarity between a design subject to confirmation and a basic design, if similar designs of a basic design are registered, the basic design and its similar designs shall be prepared comprehensively (see Supreme Court Decision 89Hu25, Aug. 8, 1989). In determining the same and similar designs, the similarity of designs shall not be prepared partially separately, but shall be determined by the aesthetic sense, where persons who are able to view as a whole, by comparing with the design, are aware of the most easily leading part of the design, and the similarity of designs is to be determined in terms of the name of the design subject to confirmation or the most similar part of the design (see Supreme Court Decision 200Hu2418, Oct. 14, 1997, 200).

In light of the design similar to the registered design of this case and the design of this case centered on the studio and the studio, the most essential part of which is the design of this case. The design of this case is identical to the design of this case; the design of similar No. 1; the design of this case is one square pole, which is the front and rear studio, and the design of this case is composed of a large number of studios at intervals of time; ② the horizontal prices of the upper part of the design are formed; ② the lower width of the upper part of the design (hereinafter referred to as the “ lower part”) is lower than the lower width of the upper part than the upper part of the registered design of this case; ③ the design of this case is similar to the upper part of the registered design of this case; ④ the design of this case which is similar to the upper part of the registered design of this case, the lower part of the registered design of this case is similar to the lower part of the registered design of this case, and the design of this case is similar to the upper part of the registered design of this case.

Of the above similar points, as seen in the ground plan of the design of this case, the design similar to the registered design of this case is not clearly perceived as a vertical pole’s shape as being aground at the upper end of the vertical pole. ② Compared to the design of this case, as seen in the ground plan of the design of this case, the shape of the vertical pole is not clearly recognized as being aground at the upper end of the vertical pole. The fixed shape of the registered design of this case is combined with the horizontal width of a number of sealings at the vertical length as seen in Da, as seen in china, as seen in china, and the upper price and lower part were more linked to the registered design of this case, and the design of this case, the upper price and lower part were already published prior to the application of the registered design of this case. ② Compared points, it is difficult to evaluate its importance as to determining the right of the registered design of this case. ③ Compared points, as to the design of this case, the shape of the design of this case, which is different from the design of this case, is not only fixed but also similar to the shape of the upper part.

However, as in the shape and shape of the vertical pole and upper street, the registered design of this case is similar to the registered design of this case in the shape and shape of the vertical pole and upper street, compared to the shape being aground in the upper part of the vertical pole, as publicly notified by the comparative design, the design subject to verification is different from the shape of the vertical pole, including the upper street pole, as publicly notified by the comparative design. In addition, the design similar to the registered design of this case is different from the design subject to verification in the shape of the vertical pole, (6) design similar to the registered design of this case (the difference is difficult to be deemed to be a part affecting the aesthetic sense because it can be easily changed by the height of the vertical pole or the distance between the horizontal pole according to the installation environment, and the difference between the two parts is also difficult to be considered to be installed in the lower part of the vertical pole and the similar design of this case, as seen in the use condition of the similar design of 1.

Therefore, the challenged design is similar in comparison with the registered design of this case and similar one design of this case, but it is somewhat similar in size as ①, different in size, ⑤ because it is obvious in the form and shape of vertical pole and upper street group as it is, the overall design of this case, similar design of this case and similar one design of this case, and similar design of this case, which are similar in aesthetic value to general consumers.

(3) Therefore, since the design subject to confirmation does not fall under the scope of the right to registered design of this case, the trial decision of this case, which concluded as above, is legitimate.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

presiding judge Lee Sung-ho

Oral Jina

Central Superintendent of the Korean Supreme Court

Site of separate sheet

1. Registered design of this case (registration number No. 2922, Jan. 31, 2001 / Registration February 22, 2002);

(a) Goods subject to design: Protective fences;

(b) Description of the design: Fire fighting materials with steel; and

(c) The main point of design creation: The combination of the shape and shape of the "protection fence";

(d) Drawings;

A person shall be appointed.

Sheon latitude and longitude (the same as the latitude and longitude)

0000

The left-hand side map (the same as the left-hand side map)

Sheet plan low surface map

2. Similar drawings of subparagraph 1 (application on September 4, 2002 / September 9, 2003) of the registered design of the instant case

Private Cities/Dos

Sheon latitude and longitude (the same as the latitude and longitude)

Sheet plan low surface map

The left-hand side map (the same as the left-hand side map)

The Speaker

3. A design subject to verification;

(a) Goods subject to a design: Handrails;

(b) A description of the design;

(1) Materials shall consist of steel scrap.

(2) Constructions through roads, embankments, etc.

(c) Design point: The shape and shape of “rails” combined with “scopic” and “scopic”;

(d) Drawings;

Private Cities/Dos

A person shall be appointed.

Sheon latitude and longitude (the same as the latitude and longitude)

The left-hand side map (the same as the left-hand side map)

Ground plans;

Low face value map

Post)

Reference 1 (Detailed Degradity) Also 2 (Use Level)

4. Comparison design (registration number No. 202442, July 18, 1996 applied on July 18, 1997);

(a) Goods which are the object of design: fences;

(b) The main point of design creation: The combination of the shape and shape of “clicks”;

(c) Description of the design;

(1) Materials shall consist of metal.

(2) It shall be used for fences of families, playgrounds, etc., and the blocking of roadways and delivery in downtowns.

use of the hedges

(d) Drawings;

Full face value (the same as face value)

o00

The left-hand surface map (the same right-hand surface map) A - The cross-line map

A person shall be appointed.

G. Reference City/Do