[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 and the purport of the provision

[2] The case affirming the judgment of the court below which held that the registration of the registered design with the "electric field gambling" of the product should be invalidated on the ground that the registered design constitutes a design that can be created by a person with ordinary knowledge in the field to which the design pertains by easily changing the comparative design

[1] Article 5 (2) of the Design Protection Act provides that design registration shall not be granted where a person with ordinary knowledge in the art to which the design pertains can easily create a design by combining designs falling under paragraph (1) 1 or 2. It is reasonable to deem that not only a combination of designs falling under any of the above subparagraphs, but also a design that can be easily created by the above designs, respectively. The purport of the provision is that a design can not be registered because it is merely a commercial or functional alteration without any other aesthetic value, or a design whose creative level is lower, such as a design that is modified, combined or used by a person with ordinary knowledge in the art to which the design pertains, even if it is partially modified, it is merely a commercial or functional alteration without any other aesthetic value, or a design that is modified, combined or used by a person with ordinary knowledge in the art to which the design pertains, because it can be easily created by a person with ordinary knowledge in the art to which the design pertains.

[2] The case affirming the judgment of the court below which held that the registration should be invalidated on the ground that the registered design with the "electric field gambling" of the product constitutes a design that can be created by easily changing the shape of the decoration by means of dividing the rainwater or sunlight of the comparative design by the scam and changing the shape of the decoration, etc. in the field to which the design belongs by a person with ordinary knowledge in the field where the design pertains

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

Plaintiff (Patent Attorney Kang Jong-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Inulul, Attorneys Kim Byung-jin et al., Counsel for the defendant-appellant)

Patent Court Decision 2008Heo2664 Decided July 9, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 5(2) of the Design Protection Act provides that design registration shall not be granted where a person with ordinary knowledge in the art to which the design pertains can easily create a design by combining designs falling under paragraph (1) 1 or 2. It is reasonable to deem that not only a combination of designs falling under any of the above subparagraphs, but also a design that can be easily created by the above designs, respectively. The purport of the provision is that a design can not be registered because it is merely a commercial or functional alteration without any other aesthetic value recognized as a whole, or a design whose creative level is lower, such as a design that is modified, combined or used by a person with ordinary knowledge in the art to which the design pertains, because it can be easily created by a person with ordinary knowledge in the art to which the design pertains.

2. In light of the above legal principles and the records, the registered design of this case (registration number No. 435126) using the goods as “electric field gambling” (registration number No. 435126) and the comparative design as stated in the judgment of the court below, both designs are identical to the design of this case, where both sides and upper parts of the upper part of the body of the upper part of the body of the body of the body of the body of the body of the original body that is long as the vertical length, where two somewhat protruding windows were formed protrudingly on the upper part, where the two protruding windows were set up at the upper part of the upper part, where the rain or the sunlight project was protruding out on the front part of the upper part, where the upper part of the upper part and lower part are separated from the upper part, and there were no errors in the misapprehension of legal principles as to the design of this case, where the registered design of this case was changed to the upper part of the upper part, and there were no reasonable shapes of the outer part of the design, and there were no errors in the lower part of the design.

3. 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 Yang Sung-tae (Presiding Justice)