Criteria for determining the similarity of the design

Whether the design is similar or not shall be determined by examining whether a person who is viewed by each chairperson causes a person to feel a different aesthetic sense from each other by comparing and observing the elements constituting the design as a whole. In such cases, the detailed criteria for determining the similarity shall be determined from the perspective of whether there may be a difference in the sense that there may be a difference in the sense that the general consumers feel when grasping the part that is easily leading the attention of the seer as an essential part and observing each essential part in comparison with each other.

Article 5 of the Design Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Kim Jin Kim

Park Tae-Jung et al., Counsel for the defendant-appellant-appellant

Korean Intellectual Property Office Decision 88DaDa177 dated September 23, 1989

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

Whether or not a design is similar to a design shall be determined by examining whether or not a person who is viewed by each chairperson causes a person to feel a different aesthetic sense from each other by comparing and observing the elements constituting the design as a whole. In this case, the specific criteria for determining the similarity should be determined from the perspective of whether or not there may be a difference in the sense that the person's attention can be known as an essential part and when observing and observing in comparison with each essential part (see Supreme Court Decision 85Hu101, Feb. 24, 1987).

According to the reasoning of the original decision, the court below's decision is just and there is no error in the misapprehension of legal principles as to the similarity of designs, such as the theory of lawsuit, or in the incomplete deliberation or omission of judgment, in view of the shape that shows the most well-known structural characteristics of each of the above designs, and considering the shape of each of the above designs as an essential part, compared to the shape that forms sloped on the location or upper side of the main body, it is difficult to see that there is similarity between the two. Furthermore, in light of the records, since the whole is different from each other, the Speaker of subparagraph (a) does not belong to the scope of the right of the main design.

The claimant's interest in the appeal is extinguished because he/she has published the apology and advertisement about the infringement of the design right of this case by recognizing the similarity between the registered design of this case and the design of this case, and presented to the respondent a letter that he/she would not engage in the infringement of the registered design right of this case in the future. However, even if the record was examined until the conclusion of argument of the court below, there is no evidence to acknowledge the fact that the claimant intended to waive the appeal of this case.

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

Justices Yoon So-young (Presiding Justice)