206Heo9036 Confirmation (D) of the scope of rights

○ ○

Seoul

Attorney Park Jae-hoon

Bag-man, Ltd.

Bucheon-si

Representative Director;

Attorney Park Jae-hoon

March 22, 2007

April 5, 2007

1. The decision made by the Intellectual Property Tribunal on September 7, 2006 on September 7, 2006 by the Intellectual Property Tribunal is revoked.

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

The order is as set forth in the text.

1. Basic facts

[Evidence] Each description of Gap evidence Nos. 1 through 4 and the purport of the whole pleadings

A. The Plaintiff’s registered design, the instant registered design, and the comparative design (1) filed on February 12, 2001, and registered on March 4, 2002 as the Plaintiff’s registered design (hereinafter “instant registered design”). The contents and drawings of the instant registered design are as shown in attached Table 1.

(2) A design for lighting fixtures, which the Defendant is implementing, is a design for lighting fixtures (attached Form A No. 1). Its contents and drawings are as shown in Attached Form No. 2. (3) The contents and drawings of the comparative design No. 1 through No. 3 are as listed in Attached Form No. 3.

B. On January 11, 2006, the Plaintiff asserted that the design subject to confirmation falls under the scope of the right to the registered design of this case because its overall shape and shape are similar to the registered design of this case, and the Plaintiff filed a request for an affirmative confirmation of the scope of the right to the registered design with the Intellectual Property Tribunal under 200685. (2) On September 7, 2006, the Intellectual Property Tribunal dismissed the Plaintiff’s request for an adjudication to confirm the scope of the right to the registered design of this case on the ground that the design subject to confirmation does not fall under the scope of the right due to the difference between the registered design of this case and the whole of the registered design of this case (hereinafter “instant adjudication”).

2. The allegations and issues of the parties

A. Summary of the plaintiff's ground for revocation

The design subject to confirmation is similar to the depth of the registered design of this case and the shape and shape of the registered design of this case in comparison with the whole. As such, it falls under the scope of the registered design of this case.

B. The summary of the Defendant’s argument that the grounds for the Defendant’s trial decision were affirmed (1) that combines the transparent outer glass and the non-lucentive glass with the instant registered design was publicly notified by the comparative design, and the shape of the bridge salle is not limited to the comparative design, but is widely known.

Therefore, the scope of the registered design of this case may not be recognized since the registered design of this case is identical, similar, or easily created from, the comparative design. (2) Since the challenged design of this case differs in depth from the registered design of this case and the shape and shape of the registered design of this case, it does not fall under the scope of the right.

C. Issues

According to the allegations by the above parties, the issue of this case is whether the registered design of this case was publicly or easily created from the comparative design, and whether the challenged design is similar to the registered design of this case.

3. Determination as to whether the registered design of this case was publicly or easily created from the comparative design

A. In a case where a registered design is identical or similar to a design recorded in a publication published prior to the filing of the application, the scope of the right cannot be recognized regardless of whether the registration invalidation trial is filed (see Supreme Court Decision 2002Hu2037, Apr. 27, 2004).

However, the registered design of this case is characterized by the shape of a bridge with four pages where the four pages are sloping, and the two sides of transparent glass and the two sides are formed. It is obvious that the Defendant’s assertion that no composition including the above characteristics of the registered design of this case among the comparative designs exists (the comparative design 3 is apparent that the comparative design 3 was distributed after the application of the registered design of this case, and it cannot be used as evidence that the registered design of this case was publicly known).

Therefore, this part of the Defendant’s assertion that the scope of right is denied on the premise that the registered design of this case is identical and similar to the publicly known comparable design.

B. Even if a registered design could easily be created by combining existing publicly known designs in the field to which the design pertains prior to the filing of the design registration, such circumstance alone does not deny the scope of the registered design right (see Supreme Court Decision 2005Hu2922, Jul. 28, 2006).

Therefore, this part of the Defendant’s assertion that the scope of the registered design of this case can be easily created by combining the comparative designs and the shapes widely known in the Republic of Korea is denied, without any need to further examine the remaining points.

4. Determination as to whether the registered design of this case is similar to the design subject to confirmation

A. Criteria for determining similarity of designs

The similarity of a design shall be determined not separately from each element of the design, but from whether a person who is deemed to observe and observe the overall appearance of the design in comparison with the overall appearance feel a different aesthetic sense. In such a case, the similarity should be determined from the perspective of whether the most easily leading part of the design is identified as a essential part, and that there is a difference in depth by observing that part. On the other hand, not only at the time of the use of goods whose design is expressed but also at the time of transaction (see Supreme Court Decision 2000Hu129, May 15, 2001).

B. Whether the registered design of this case and the design subject to confirmation (1) are similar to the registered design of this case (the main features of the registered design of this case and the design subject to confirmation are as follows: the main features of the registered design of this case are as follows: four sides of the registered design of this case are as follows: "the sloping shape with slope surface" are as follows: "the sloping shape with slope surface; the two sides are combined with the inside of the transparent outer glass and the name

The main features of the design subject to confirmation are as follows: (a) the design of this case and the design subject to confirmation are both the design of this case and the design subject to confirmation in comparison with the design of this case, "the same use and function as the side prior to the lighting fixture"; and (b) both designs are the most essential parts that indicate the aesthetic characteristics of the design, such as the shape and shape of the sloping map, centering on the time of use and transaction, and are easily leading the attention of general consumers.

6. The design of this case and the registered design of this case are common in that (1) a sloping shape is combined with a sloping surface; (5) a design of this case is a structure that can be combined with a sloping surface; (4) a design of this case is a structure that can be combined with a sloping surface with a sloping surface; (5) a design of this case is not a transparent sloping surface with a sloping surface with a transparent outer glass; (4) a design of this case is a structure that can be combined with a sloping surface with a sloping surface with a transparent sloping surface; and (5) a design of this case is a structure that can be combined with a sloping surface with a sloping surface with a transparent sloping surface; and (5) the upper part of the registered design of this case is hard to see the lower part of the registered design in light of the difference between the shape of the sloping surface and the shape of the sloping surface with the outer surface; and (4) the lower part of the registered design of this case is within the lower part of the design.

Therefore, the two designs are similar in depth, where the controlling characteristics such as private roads and static roads, which fall under the main essential part, are similar to those of the two designs, in view of the whole.

C. Sub-decision

Ultimately, the challenged design is a design similar to the registered design of this case, and the aesthetic sense that the entire design of this case was spared.

5. Conclusion

Therefore, since the challenged design falls under the scope of the right to registered design of this case, the trial decision of this case, which concluded differently, is unlawful.

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is justified and it is so decided as per Disposition.

Judge Lee Jong-soo

Judges Seo Young-gu

Judges Yoon Tae-sik

[Attachment 1]

The registered design of this case

1. Name of goods which are the object of design: The illumination, etc. of lighting fixtures;

2. A description of the design;

A. This product is composed of a double combination of transparent glass (clateral glass) and lusculous glass (Granculty).

Jind Product

(b) A new association consisting of double glass from the structure of the existing side of street lights;

product.

(c) the part of the drawings, excluding the examination part of the latitude and longitude, is transparent glass;

Examination parts are non-disslut glass.

(d) The outer part shall be transparent glass and the test part of the inside shall be non-distinct glass;

One of the structural glass.

3. The main point of the creation of a design: The creation of a design consisting of the combination of the shape and shape of "the side of a lighting fixture";

The main point is the content.

4. Drawings;

Gindo City/Do Madondo Madondo

A person shall be appointed.

The left-hand surface map of the upper right-hand surface map;

A person shall be appointed.

Reference also 1

[Attachment 2]

A design subject to confirmation

1. Goods which are the object of a design: The whole side of lighting fixtures;

2. A description of the design;

(a) the form of double glass, in a single form of glass from a transparent outer glass and from a non-disfortunate name;

(b) The inside glass and inside glass shall be in a shape of a bridge with the same shapes and shapes, respectively, of four pages;

(c) in Amnesty and 6 degrees the test part shall be free from the name of luculation, and the de facto line shall be transparent.

It is expressed that the glass is reflected.

3. Drawings;

Ga City/Do Madondo (the same surface map, coordinates, right side map)

Sheet plan low surface map

A person shall be appointed.

[Attachment 3]

Compared Designs

1. Compared design 1 (A No. 1 No. 3. A.);

KOREA LIGHING NEWS, distributed around July 2000, to from July 2000 to September 9, 2000 (No. 12)

Any combination of the shapes and shapes of lighting fixtures (TJ LUX).

2. Compared design 2 (B No. 1)

A person shall be appointed.

KOREA LIGHING NEWS, distributed around December 2000, between December 2000 and February 2, 2001 (No. 13)

The combinations of the shape and shape of lighting fixtures (age P/D) on the side (age P/D).

3. Compared design 3 (No. 2)

KOREA LIGHING NEWS, distributed around April 2001, to heading (No. 14) from April 2001 to June 2001.

combinations of the shape and shape of lighting fixtures on the side.

Finally.

A person shall be appointed.