A. Criteria for determining the similarity of designs

B. Criteria for determining objective creativity in design

A. Whether the design is similar should not be separately compared to each element comprising the design separately, but it should be determined depending on whether a person who observess the appearance as a whole, and makes another person feel a different aesthetic sense, and if the dominant characteristics are similar, the two chairpersons are similar even if there are somewhat differences in the detailed aspects.

B. The objective creativity required by the Design Act is not a unique feature that is not similar to all the past or present devices, and thus, a design registration under the Design Act may be granted if an aesthetic device that combines a new aesthetic device based on the past and present devices, to the extent that the former design is recognized as having a aesthetic value different from the previous design, even if the inventive step is partially recognized, unless an aesthetic value different from the previous and present devices is recognized as a whole, it is merely the commercial and functional alteration of the publicly known device.

Article 5 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) (see current Article 5 of the current Design Act)

A. (B) Supreme Court Decision 91Hu288 delivered on Nov. 8, 1991 (Gong1992, 113), 93Hu961 delivered on Jun. 14, 1994 (Gong1994Ha, 1963), 93Hu1622 delivered on Jun. 24, 1994 (Gong191, 1285), 93Hu1759 delivered on May 27, 1994 (Gong194Ha, 1839)

Lawing Barun and Patent Attorney Kim Jong-sik, Counsel for the defendant-appellant

Dongyang District Corporation

Korean Intellectual Property Trial Office 91 dated August 31, 1993

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal.

According to the reasoning of the decision of the court below, considering the shape of the registered design of this case, since the shape of the registered design of this case has already been announced publicly, focusing on the patternless shape, the court below determined that the registered design of this case is different from that of the cited design of this case on the left upper part of the upper part because the shape of the registered design of this case is recognized as being the already known design in the field to which the design belongs, since the rectangular pattern and its main shape of the interior are recognized as the already known design in the field to which the design belongs, and the cited design of this case is identical to the pattern pattern pattern pattern pattern pattern (1) of the NAriri, and the pattern of the registered design of this case is different from that of the cited design because the shape of the registered design of this case is characterized by the pattern of the original and present at the top of the lower part, and it is not similar to that of the previous design because a new aesthetic device of the inventor is combined with the previous design of this case.

However, the similarity of a design shall not be separately compared to each constituent element separately, but it shall be determined depending on whether a person who observess the appearance of the design as a whole causes different aesthetic sense. If the dominant characteristics are similar, even if there are some differences in detail, the two chairpersons should be deemed similar (see, e.g., Supreme Court Decision 90Hu1628, Mar. 22, 191). Furthermore, the objective creativity required by the Design Act is not a high level of originality, i.e., unique characteristics that are not similar to those of the past or present, and thus, if an aesthetic device that combines a device that is not similar to those of the past or present, and is recognized as a new aesthetic value, it may be registered under the Design Act, but even if it is partially recognized non-obviousness, it cannot be deemed as a commercial modification of a publicly known device, which is merely a commercial modification of the publicly known device, unless it is recognized differently from the past and present devices; see, e.g., Supreme Court Decision 198Hu41984, Apr. 198, 1998198).

From this point of view, a registered design is applied on December 30, 1989 and is registered on November 27, 1990, and the shape and shape of a shot tablet printed on the surface are the outline of the device. The cited design is the Karode of Japanese corporation, Inc., a publication distributed on 1988.I.P. The shape is extremely similar to that of the original design, and it is difficult for the Speaker to see the shape of the registered design as a whole to see the shape of the non-permanently different from the original shape of the registered design on the basis of the difference between the original shape and the inner shape of the registered design and the inner shape that would be easily distinguishable from the original shape of the registered design. However, it is difficult to see the original shape of the registered design on the basis of the difference between the original shape and the non-permanent shape of the registered design that would be easily distinguished from the original shape of the registered design on the ground of the difference between the original shape and the inner shape of the registered design.

Therefore, the decision of the court below to the different purport is erroneous in the misunderstanding of legal principles as to the similarity and creativity of a design.

Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Sang-won (Presiding Justice)