[1] In a case where a person who infringed a design right does not know of the registration of the design right and produced by a third party's order and supplied the whole quantity to a third party by means of original trademark attachment, whether the presumption of negligence as to the infringement of the design right is reversed (negative)

[2] Where a person who has infringed a design right requests a trial to the Korean Intellectual Property Office against the owner of the design right, the starting point of starting the extinctive prescription of the right to claim damages caused by infringement of the design right

[3] Where a property right is infringed by a tort, consolation money for mental damage caused by such infringement

[1] The main sentence of Article 65 of the Design Act provides that a person who has infringed a design right or exclusive license of 0b another person shall be presumed to have been negligent in the infringement.0C. Even though the infringer had knowledge that the design right was registered, and the third person had manufactured the product with design drawings, equipment and parts provided by the third person under a contract with the third party, and then supplied the whole quantity of the product with a trade name and mark affixed thereto to the third party, the production act itself is presumed to have infringed the design right and it does not constitute a ground to reverse the presumption of negligence or negligence.

[2] The "date when the person becomes aware of the damage and the identity of the perpetrator" under Article 766 (1) of the Civil Code, which is the starting point of starting the short-term extinctive prescription of the right to claim damages due to a tort, is the time when the person who committed the infringing act in relation to the request for the suspension of the manufacture and sale of goods infringing on the right to claim damages, and it is reasonable to view that the owner of the right to claim a trial against the Korean Intellectual Property Office, claiming that the goods manufactured and sold by the person who committed the infringing act do not infringe on the right to claim compensation, and that the owner of the design right was aware of the tort only when the decision became final and conclusive, and therefore the short-term extinctive prescription of the right to claim damages should run from that day.

[3] In general, in a case where a property right is infringed due to a tort of another person, mental suffering is also deemed to be recovered by compensation for such property damage. However, in a case where there is any irrecoverable mental suffering, other than property damage, due to reputation or credit damage, etc., the compensation for property damage shall be paid as compensation for such mental suffering.

[1] Article 65 of the Design Act / [2] Article 766 (1) of the Civil Act / [3] Article 751 of the Civil Act

[2] Supreme Court Decision 89Da6584 delivered on September 26, 1989 (Gong1989, 1569), Supreme Court Decision 93Da5845 delivered on January 25, 1994 (Gong1994Sang, 812), Supreme Court Decision 95Da33450 delivered on August 23, 1996 (Gong196Ha, 2814) / [3] Supreme Court Decision 91Da25628 delivered on December 10, 1991 (Gong192, 485), Supreme Court Decision 91Da3834 delivered on May 26, 1992 (Gong192, 2003), Supreme Court Decision 95Da25415 delivered on May 25, 1995 (Gong1994, 205)

Dong Exchange Industry Co., Ltd. (Attorneys Kim Jin-jin et al., Counsel for the defendant-appellant)

[Defendant-Appellant] Defendant 1 and 3 others (Attorney Yoon Young-young, Counsel for defendant-appellant)

Busan High Court Decision 95Na3886 delivered on June 27, 1996

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal by the plaintiff and defendant are examined (if the supplemental appellate brief was not timely filed, to the extent that it supplements the grounds of appeal).

1. As to the Defendant’s ground of appeal No. 1 as to the presumption, return, or negligence without fault

The main text of Article 65 of the Design Act provides that a person who has infringed a design right or exclusive license of 0b others shall be presumed to have been negligent in the infringement.0c. Although the defendant did not know the fact that the design right of this case was registered in the name of the plaintiff, and even if he manufactured the product of this case with design drawings, equipment, and parts provided by the above non-party company under a contract with the non-party Pungsung Electric Co., Ltd. (hereinafter referred to as the "non-party Co., Ltd."), and delivered all of the product of this case to the above non-party company with the trade name and mark attached thereto, the production itself is presumed to have infringed the plaintiff's design right of this case. The above reasons alone do not lead to

The court below's above decision is just, and there is no error in the misapprehension of legal principles as pointed out in the grounds of appeal.

2. As to the Defendant’s ground of appeal No. 2 regarding the starting point of short-term extinctive prescription

The "date when the defendant and the non-party company knew of the damage and the identity of the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of starting the short-term extinctive prescription of the right to claim damages due to the tort, is the time when the defendant and the non-party company knew of the occurrence of the damage and the identity of the perpetrator, as well as that the harmful act could claim damages due to the tort. In regard to the plaintiff's request against the defendant and the non-party company to suspend the manufacture, sale, etc. of the product infringing on the right of this case, the defendant and the non-party company alleged that their products manufactured and sold do not infringe the plaintiff's design right of this case, and considering the plaintiff's claim for a trial to confirm the scope of the right of this case and the registration invalidation of the design right of this case in the Korean Intellectual Property Office

The above decision of the court below is just, and there is no error in the misapprehension of legal principles as to the expiration point of extinctive prescription, which is pointed out in the grounds of appeal. This is without merit.

3. Plaintiff’s ground of appeal as to the claim of consolation money

In general, in a case where a property right is infringed due to a tort of another person, it shall be deemed that the mental suffering is recovered by the compensation for such property damage. However, in a case where there is any irrecoverable mental suffering by compensating for property damage other than property damage due to reputation or credit damage, it shall be paid consolation money for such mental suffering. However, according to the records, there is no evidence to prove that the plaintiff had a credit damage due to the infringement of the design right of this case or that there was a other property damage that cannot be recovered by only compensating for property damage. Thus, the claim of consolation money of this case cannot

In the above purport, the court below's rejection of the plaintiff's claim for consolation money is just, and there is no misapprehension of legal principles or misconception of facts alleged in the grounds of appeal.

4. As to the plaintiff and defendant's remaining grounds of appeal on mistake of facts

According to the reasoning of the judgment below, the court below rejected all the plaintiff's assertion on the following grounds: the amount of loss sustained by the plaintiff due to the manufacturing and sale of the goods of this case; the amount of loss not raised according to the price and production cost increase rate for the products produced by the plaintiff; or the amount of net profit actually earned by the defendant is not possible due to lack of objective and reasonable grounds or data to recognize that the amount of such loss or profit actually earned by the defendant. However, the court below recognized the amount equivalent to 3% royalty equivalent to the amount of the design right of this case which is ordinarily able to receive for the implementation of the design right of this case pursuant to Article 64 (2) of the Design Act.

According to the records, the above recognition and judgment of the court below are just, and there is no violation of the rules of evidence, incomplete deliberation, misconception of facts, or special nature of compensation for damages arising from infringement of intellectual property rights, which are pointed out in the grounds of appeal. All arguments are without merit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)