[1] Whether not only a combination of designs falling under Article 5 (1) 1 or 2 of the Design Protection Act, but also a combination of designs that can be easily created by each of the above designs can not be registered under Article 5 (2) of the Design Protection Act (affirmative), and the purport of the provision

[2] In a case where Gap's registered design " "" and " "", which are the malodor prevention device for sewage pipes, are similar to or can be easily created from the comparative design 1 " " and "," the case holding that the judgment below which held otherwise erred in the misapprehension of legal principles in holding that the registered design is a design that can be easily created by ordinary technicians by comparison design 1, although the registered design is a design that can be easily created by comparison design 1

[1] Article 5(1)1, 2, and 5(2) of the Design Protection Act / [2] Article 5(1)1, 2, and 5(2) of the Design Protection Act

[1] Supreme Court Decision 2008Hu2800 decided May 13, 2010 (Gong2010Sang, 1163)

Plaintiff 1 and one other

Defendant (Patent Attorney Kim Young-ok, Counsel for defendant-appellant)

Patent Court Decision 201Heo781 Decided April 21, 2011

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

Article 5(2) of the Design Protection Act provides that a design can not be easily created by a person with ordinary skill in the art to which the design pertains through a combination of designs falling under paragraph (1) 1 or 2. It is reasonable to deem that not only the combination of designs falling under the above subparagraphs but also designs that can be easily created by each of the above designs include designs. The purport of the provision is that a design can not be registered because it is merely a commercial or functional transformation without any other aesthetic value recognized as a whole, or a design whose level of creation is low, such as a design whose level of creation is modified, combined or used by a person with ordinary skill in the art to which the design pertains, because it can be easily created by a person with ordinary skill in the art to which the design pertains (see Supreme Court Decision 200Hu808, May 23, 2010).

위 법리와 기록에 의하여 보건대, 대상물품을 ‘하수관용 악취방지구’로 하는 이 사건 등록디자인(등록번호 제467354호)과 원심 판시 비교대상디자인 1의 전체적인 형상과 모양이 잘 나타나는 사시도 및 정면도를 중심으로 하여 이 사건 등록디자인 “ ”, “ ”과 비교대상디자인 1 “ ”, “ ”을 대비하여 보면, 양 디자인은 모두 몸체 하부에 안쪽으로 움푹 파인 방사형 절개부가 다수 형성되어 있고, 몸체 바닥 부분에는 다수 개의 사각 막대 형상의 탄성개폐부가 형성되어 있다는 점에서 공통되므로, 양 디자인은 그 주된 창작적 모티브를 같이 한다고 할 것이다.

However, while the five types of radioactivity, which were shown in the registered design in the instant case, are the arche shape, the four parts of the five types of radioactivity, shown in the comparison design 1, are the three-dimensional shape. While the shape of the above part of the registered design in the instant case is the different shape, while the registered design in the instant case is a protruding shape in the body body, while the registered design in the instant case is a protruding shape in the outer body body body form, while the two designs are somewhat different in that the two design in the comparative design 1 is the protruding shape in the belt shape according to the outer body gate. However, the difference in the number and shape of the parts of the radiation cutting type is merely an incidental to the commercial and functional alteration without any other aesthetic value in view of the overall, and the difference in the shape of the above part of the arche type is merely an incidental to the change in the number of the parts of the arche type, and the foregoing part of the registered design in the foregoing U.S. cannot be seen to be a change in the shape of the protruding shape in the shape.

Therefore, it is reasonable to view the registered design of this case as a design that can be easily created by a person with ordinary knowledge in the field to which the design pertains by comparison design 1.

Nevertheless, the lower court determined that the registered design of this case was not a design that could have been easily created by a person with ordinary knowledge in the field to which the design pertains, on the grounds that the registered design of this case was partially similar to the comparative design 1, but that the aesthetic value clearly distinguishable from the overall view is recognized. In so doing, the lower court erred by misapprehending the legal doctrine on determining the utility of the design, thereby adversely affecting the conclusion of the judgment, and the allegation in the grounds of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)