[1] Where each drawing of a registered design is inconsistent with each other, whether it can be deemed that the requirements for the registration of a design under the main sentence of Article 5(1) of the Design Act are satisfied (negative)

[2] The case holding that each drawing of the registered design relating to the shape and pattern of the 's 's 's 's 's 's 's 's 's 's 's '' failed to meet the registration requirements as a design

[1] The scope of protection of a registered design shall be determined by the descriptions of the application for design registration, drawings appended to the application, and the descriptions, photographs, models, or samples of drawings (Article 43 of the former Design Act (amended by Act No. 6413 of Feb. 3, 2001). The registered design shall be a design with old structure so as to accurately grasp the scope of protection. If the drawings of the registered design are inconsistent with those of the registered design, the chairperson is in harmony with the structure, and it does not meet the requirements for the registration of the Speaker under Article 5(1) of the Design Act as there is no possibility of industrial use.

[2] The case holding that since each drawing of a registered design relating to the shape and shape of the "slush" does not coincide with each other in the shape and shape of the upper, lower, lower, and upper and upper parts, it did not meet the requirements for registration as a design under the main sentence of Article 5 (1) of the Design Act due to the lack of industrial applicability.

[1] Article 43 of the former Design Act (amended by Act No. 6413 of Feb. 3, 2001); Article 5 (1) of the Design Act / [2] Articles 5 (1) and 68 (1) 1 of the Design Act

Choi Ho-ho (Patent Attorney Ba-ho et al., Counsel for the plaintiff-appellant)

Yellow-gu et al. (Patent Attorney Won-gu, Counsel for the defendant-appellant)

December 12, 2003

1. The decision made by the Intellectual Property Tribunal on June 30, 2003 on the case No. 2002Da3225 shall be revoked;

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

The same shall apply to the order.

1. Basic facts

[Evidence: Evidence No. 1 to 3, Evidence No. 4-1 to 3, evidence No. 5-1 to 6, evidence No. 7-1 to 3, evidence No. 12, evidence No. 13-1, 2, and 1 of evidence No. 13]

A. The registered design of this case

(a) Goods: Slush lush;

(2) The summary of the design: The combination of the shape and shape of the 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's '

(3) Date of application / Date of registration: February 14, 1995 / July 19, 1996

(d) Registration number: No. 183280;

(5) Right holder: Defendants

(b) Quotations;

(1) Quotation 1

The designs of "the Japanese Design Gazette (No. 207445, No. 20745) published on July 6, 1962," which were commenced in the Japanese Design Gazette (No. 207445, No. 3) are as shown in the annexed drawing No. 2.

(2) Quotation 2

The term “air” photograph, as expressed in the annex No. 3, issued by Symnas Korea on March 1992, which was commenced in March 1992 (No. 3, No. 4-1, No. 4-2).

(3) Quotation 3

Along on April 192, 192, a 'Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-Mai-

(4) Quotation 4

Design Gazette published on December 30, 1976 (application No. 25, September 25, 1974, registration No. 17922, No. 17922, No. 6) was commenced on March 3, 1974, and as shown in the Appendix No. 5.

(5) Quotation 5

On-line Exp-L Exp among the Internet homepage of the world X-Pon as a foundation, which is launched on the online display (http://wwwf.com/ex/index .p) in the Republic of Korea living range of 60 years, as shown in the Appendix 6.

(6) Quotation 6

Design Gazette published on February 12, 1987 (Application No. 7, Nov. 7, 1985, Registration No. 6629, Registration No. 6629, A No. 12) is a design concerning "a tea tea balance" which was commenced in the Design Gazette published on February 12, 1987, as shown in the Appendix No. 7.

(7) Quotation 7

Along on December 1994, it is a false national photograph, which was launched in the "Goods Market" (No. 2, 1994, No. 13-1, 2) published by the "Goods Market" (No. 1, 1994, and No. 13-2) as shown in the Appendix No. 8.

C. Details of the instant trial decision

The plaintiff filed a petition against the defendants for a registration invalidation trial of the registered design of this case on the ground that the registered design of this case is identical or similar to that of the quoted 1, etc. publicly notified prior to the filing of the petition, and the registration should be invalidated, since the registered design of this case cannot specify the design because it is inconsistent with the private roads and 6 degrees connected to the registered design bulletin of this case. The plaintiff filed a petition for a registration invalidation trial of the registered design of this case on the ground that the registered design of this case should be invalidated, and the Korean Intellectual Property Tribunal deliberated this as 202Da3225 on June 30, 2003, and dismissed the plaintiff's petition for a trial on the ground as follows.

D. Summary of the grounds for the instant trial decision

(1) Whether the registered design of this case conflicts with the main sentence of Article 5(1) of the Design Act

The claimant (the plaintiff) asserts that among the drawings of the registered design of this case, the two shapes of the two sides divided by the point where the street line and the bridge shape are visible to differ each other. However, in terms of the fixed latitude, the registered design of this case combines under the upper part's upper part's upper part's upper part's upper part's upper part's upper part's shape of the narrow congested with the upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's length is different, and the two sides's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's upper part's length is different, and each part's upper part's upper part's upper part's upper part's upper part's upper part is different.

In addition, it is difficult to observe that the in-depth shape of the lower part of the goods appearing on the latitude, longitude, and the viscosium and the viscosium are unclear, and that the upper part of the goods is close to a small upper luminous consultation form. However, inasmuch as the direction to regard the goods or the application of the viscosium or the original law can be selected at the time of drawing preparation, it may be expressed differently from the shape that is observed on the surface of the land when drawing is drawn up. Considering that the lines expressing the goods in the sicosium and the upper part cannot be seen as not specifying the goods, since the lines expressing the goods in the sicosium and the sicosium expressed the goods in a narrow and strong manner, it is difficult to see that the sicosium and the sicosium are merely observed differently.

On the other hand, in a case where it is impossible to sufficiently express the design only on the surface map or on the surface map, it is possible to specify the product by the basic drawing even if the basic drawing of a certain design is different from the reference drawing. Therefore, it is difficult to deem that there is a cause for invalidation in the registered design solely on the basis that the reference drawing is inconsistent with the other drawing. Thus, it is difficult to regard that the single form map marked on the 'low surface map' lacks in the 'A-A-A-A-ray map' which is the reference drawing, because the drawings are inconsistent with each other.

(2) Whether the registered design of this case and the cited design 1, etc. are similar

Although the registered design of this case and the cited design 1 are the goods whose use and function are the same, unlike the registered design of this case, the cited design 1 is in a flat shape where the upper and lower area is clearly broad compared to the depth, and the lower part of the quoted design consists of the lower part of the cited design of this case compared with the lower part of the lower gate of the original horns of the instant registered design of this case. There is no number of single parts, which are the characteristics of the instant registered design, the lower part of the quoted design of this case. Thus, the two chairpersons are different from each other, since the lower part of the quoted design of this case does not have the characteristics of the instant registered design.

In addition, the registered design of this case is different from the registered design (registration number No. 60169, No. 99, No. 9-3) on the scambling of a scambling shape, and its overall aesthetic sense is different from the registered design (registration number No. 6629, No. 6629, 6 of the quoted design in this case).

Therefore, the plaintiff's assertion that the registered design of this case should be invalidated because it is similar to the cited Design 1, etc. published in publications distributed domestically or abroad before the application is filed.

2. The parties' assertion on the legitimacy of the instant trial decision

A. Grounds for revocation of the Plaintiff’s trial decision

(1) The registered design of this case is the upper part of the upper part, and the upper part and the lower part form one in-depth part. The lower part form the upper part of the upper part and the lower part form the upper part, with two lines added to the upper part of the lower part, and it is unclear whether it is a three-dimensional expression. However, even though it is unclear whether it is a mere guidance, even in the upper part of the City/Do and the upper part of the A-A Line, a large number of floors were not expressed to the extent that they can be observed with the upper part, and even in the explanation of the Speaker, it is explained that only the upper part and the lower part form the upper part form the upper part as only a mere guidance.

(2) According to Defendant’s assertion, if it is determined that two guidances urban at the lower level and lower level were to be expressed at the lower level, depending on the difference in the grain rate, the lower level and lower level may coincide with each other, but the explanation by the president is not in accord with the latitude and lower level and the lower level, and the explanation by the president.

(3) In comparison with the cited design 1 to 5, the registered design of this case is the original shape, which is the connections between the upper part and the lower part. The lower part is the same in-depth body in that the upper part consists of the upper part and the lower part, and the lower part is the same in-depth body in that it consists of the upper part and the lower part. However, even though there are somewhat differences in the detailed aspect, this is merely a simple commercial and functional transformation that does not affect the overall aesthetic sense, and thus, the registered design of this case is identical with or similar to the publicly announced 1 to 5 of the cited design.

(4) Even if the registered design of this case was formed more than 2 cruxs on the part of the crush, the essential part of the registered design of this case is the in-depth part formed in the connecting part of the upper part and the lower part of the design of this case, and it is widely known as one of the design techniques commonly used to mislead many people in the crushing industry, as it is seen in the crush No. 9-1 through 11 of the evidence No. 10, and the two parts at the bottom of the registered design of this case were often used for a long time as seen in the 10-1 to 11 of the evidence No. 10, and in view of the comparison between the design 6,7 of the cited design of this case, the upper part of the registered design of this case is an in-depth part of the upper part and the upper part is in-depth part of the upper part and the lower part, and it cannot be recognized that the registered design of this case was newly formed as a whole from the lower part of the design of this case.

B. Defendants’ assertion

(1) Two dynamics, which were linked to the two lines and low altitudes located in the direction of the street from the fixed plane of the registered design of this case, expressed a majority of stairs-type floors. This is consistent with the fact that part of the lusium was expressed differently in the lusium, but the lusium was formed in the lusium, and that a large number of minor stones are expressed on the surface outside the lusium, and even if there is any defect in the lusium, it cannot be said that there is a problem in the entire design drawings of the design.

(2) The registered design of this case and the cited design 1 to 5 are different in depth, where the shape of the upper part of the upper part and whether or not the formation of a majority of the lower part of the lower part was entirely different, and thus, the registered design of this case cannot be deemed to have been publicly announced under 1 to 5 of the cited design.

(3) Whether the registered design of this case was publicly announced should be determined by the aesthetic sense, not by the function that makes it easy for a large number of people to easily see by the lower part of the lower part, but by the overall shape and shape of the product.

(4) The registered design of this case and the quoted 6 design of this case are different from those of the 'Yolgol Dol,' respectively, and there is a difference between the target goods and the tea tea, and the overall aesthetic sense is different from the shape, such as the height at the upper end and lower end, and the design 7 of the registered design of this case and the quoted design of this case are also different from the overall aesthetic sense.

3. Determination on the legitimacy of the instant trial decision

A. Whether the registered design of this case violates the main sentence of Article 5 (1) of the Design Act

(1) The scope of protection of a registered design shall be determined by the descriptions of the application for design registration, drawings appended to the application, and the descriptions, photographs, models, or samples of drawings (Article 43 of the former Design Act (amended by Act No. 6413 of Feb. 3, 2001). The registered design shall be a design with old structure to the extent that it can accurately grasp the scope of protection. If the drawings of the registered design are inconsistent with those of the registered design, the chairperson is in harmony with the structure, and it does not meet the requirements for the registration of the Speaker under Article 5(1) of the Design Act as it lacks industrial applicability.

(2) The registered design of this case is expressed by dividing the target goods into six drawings, such as the elevation map (the same as the elevation map, the elevation map, the map, the map, the map, the map, the map, the map, the elevation map, the map of the A-A line, and the degree of use. Each of the above drawings is merely a different expression of the shape and shape of the same 's 's 's 's 's 's 's 's 's 's '',' and it is merely a different expression. Thus, each of the above drawings must coincide with each other. In the below, the overall shape and shape of the above 's 's 's 's 's 's 's 's 's 's 's 's '

First of all, the upper part of the lush lush is a rectangular-type pattern, which is drawn side by the lush and lower part, and the upper part and lower part are equally urban in the case of the lush section A-A, while the upper part and lower part are in the same same way the upper part and lower part are in the case of the lush section. On the other hand, as the upper part becomes lower below the upper part, the upper part is in the form of the upper part narrower where the upper part is gradually narrow, and even in the use situation, three lush lush lush lush lush lush is not formed in both parts and a two straight lines are cut down below the lower part, not in the upper part, but in the lower part narrower part, the upper part and the upper part are different in the shape of the upper part and the upper part’s shape and the upper part’s shape are not in accord with each other’s direction or the result that the upper part’s shape and the upper part’s shape are not in accord with each other’s direction.

In addition, in view of the static Do, A-A line short and City/Do, each drawing appears to be in accord with each other in the overall shape of the lower part, on the other hand, three street lines whose length is different from each other at the lower part of the snow farm, and in the lower part of the lower part, three street lines are added to the inside and outside part of the lower part, and at the lower part, three of which are added to the front and outside part (the front street line at the Myeondo, the outside part of the lower part). Since one of them (the front street line at the Myeondo, the outside part of the lower part) is in accord with the shape of the lower part or the lower part in the shape of the city where the lower part and the lower part were to be seen to be in accord with the lower part in the shape of the lower part and the lower part in view of the fact that the lower part in the shape or the lower part in the shape of the city where the upper part and lower part were to be seen to be in a small size (the lower part in the shape and lower part).

Furthermore, in light of the floor plan, private roads, and usage level, the upper part of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the grance of the g

(3) Therefore, the registered design of this case does not coincide with each other in the shape and shape of the upper, lower, lower, and upper and upper parts. Therefore, the shape and shape of the product subject to the design are not specified, and the shape and shape of the product subject to the design are not specified.

B. Sub-committee

Therefore, the registered design of this case is not specified specifically, and it does not meet the requirements for the registration of a design under the main sentence of Article 5 (1) of the Design Act because it is not possible to use the registered design of this case for industrial purposes. Therefore, the registration of this case should be invalidated under Article 68 (1) 1 of the Design Act without considering the similarity of the registered design of this case and the cited designs. The decision of this case is unlawful with the conclusion different.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Cho Yong-ho (Presiding Judge)