Korea AHS Co., Ltd. (Attorney Kim Jong-ju, Counsel for the plaintiff-appellant)

Han River rink Co., Ltd. (Law Firm Dr., Attorney Park Jong-hwan, Counsel for the plaintiff-appellant)

April 20, 2005

Seoul Central District Court Decision 2003Gahap40120 Delivered on August 19, 2004

1. Of the part concerning the claim for damages of the judgment of the court of first instance, the part against the defendant ordering payment of KRW 117,816,122 to the plaintiff and KRW 27,393,646 from April 15, 2003, KRW 53,272,436 from December 31, 2003, KRW 13,796,010 from January 31, 2004, KRW 23,354,030 from February 21, 204 to May 25, 2005, and KRW 5% from the next day to the day of full payment, and the part against the defendant ordering payment of KRW 20% from the above part shall be revoked. The plaintiff's claim for revocation shall be dismissed.

2. The plaintiff's appeal and the defendant's remaining appeal are dismissed, respectively.

3. The total costs of the lawsuit shall be five equal costs and three equal costs shall be borne by the plaintiff, and the remainder by the defendant.

1. Purport of claim

The defendant is jointly and severally liable with the non-party Kim Ba.

(a) using the design 1., 2.2, 3. each of the designs of the Schedule 1.2., 3.2.2. and 3., to manufacture, sell, transfer, lease or make an offer for assignment, construction or lease of the materials of polysofts to be used as a combination of interior roof materials in the construction of a building;

B. The defendant's office, factory, warehouse, and sales office are destroyed by each finished product and semi-finished product of the smoking, tent, or satisfying as described in paragraph (a) above, using each design of each of the foregoing section 1. and 2.

C. As to the Plaintiff’s KRW 361,424,00 and KRW 67,408,00 among them, 57,649,000 per annum from April 27, 2002 to the service date of a copy of the complaint of this case, from April 27, 2003 to the day of complete payment; 5% per annum from the day after the day of complete payment; 148,597,00 won from December 31, 2003 to the day of complete payment; 31,298,00 won from the day of complete payment; 56,472,00 won from February 21, 2004 to the day of complete payment; 0% per annum from the day after February 21, 2004 to the day of complete payment; and 0% per annum from the day of complete payment to the day of complete payment.

2. Purport of appeal

A. The plaintiff

(1) The part of the judgment of the court of first instance against the plaintiff shall be revoked.

(2) The defendant is jointly and severally with the non-party Kim Jong-soo.

(A) using the design 2.2, 3. each design of the separate sheet 2.2., 3. not manufacturing, selling, transferring, leasing or offering for assignment, construction or lease of, or subscription to, polybestytyp plates or ruptures used in combination with inside roof materials in the construction of a building; and

(B) disposes of each finished product and semi-finished product of the smoking, tent, or short heat in custody in the office, factory, warehouse, or business office of the defendant; and

(C) As to the Plaintiff KRW 101,768,852 and its KRW 35,280,848 among them, the amount of KRW 10,63,00 shall be paid from December 31, 202 to December 31, 15, 2003, KRW 20,678,00 from December 31, 2003, KRW 20,757,00 from December 31, 2003, KRW 20,757,00 from December 31, 2003, KRW 5,35,000 from January 31, 204, KRW 9,065,00 from February 21, 204 to the day of full payment, and KRW 5% from the day following each year to the day of full payment, to the day of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Request for prohibition of infringement on a design right;

A. The parties' assertion

(1) Plaintiff

As seen below, the plaintiff is a person having the design right of the attached design relating to the smoking ceiling board as shown below. The defendant has infringed the plaintiff's above design right by constructing the smoking ceiling board as shown in the attached Form No. 1. and 2, using each design similar to the above design of the plaintiff, and using each design of the attached Form No. 1. and each design similar to the above design of the plaintiff. Thus, the defendant shall not manufacture and sell the smoking ceiling board by using the design of the above infringement as a representative director, and shall not dispose of the above design product, and the defendant shall not manufacture and sell the smoking ceiling board by using the design of the attached Form No. 3, which is similar to the above design of the plaintiff. Thus, in order to prevent the infringement, the defendant shall seek the prohibition of manufacturing, selling, etc. the smoking ceiling board using the design of 3.

(2) Defendant

(A) Nullity of the Plaintiff’s design right

① The Plaintiff’s registered design is invalid as a design similar to, or similar to, the identical or similar one that the Plaintiff had no originality or creativity compared with the comparison design publicly performed before its application for registration. ② The Plaintiff applied for the term “heatized materials for construction” on June 14, 2002, and submitted on August 17, 2002, and on August 23, 2002, an amendment to the term “refiscing and refining materials” the name of the registered design. This amendment is an amendment that does not maintain the identity with the original design, which constitutes an amendment to Article 18(2) of the former Design Act (amended by Act No. 7289, Dec. 31, 2004; hereinafter the same shall apply) and thus, the Plaintiff’s registered design is deemed to have been filed on August 17, 200 or August 23, 202, which submitted the amendment under the said provision, and is deemed to have already been publicly known or implemented as the Plaintiff’s registered design.

(B) The difference between the plaintiff's registered design and the defendant's infringement

In addition, the head of the infringement 1., 2. The chairperson and the plaintiff sought the prohibition of infringement; 3. The chairperson shall not be identical or similar to the plaintiff's registered design and its shape and shape differently.

B. Determination

(1) Facts of recognition

(A) The Plaintiff is a person having the design right to the registered design as seen below (hereinafter referred to as “instant registered design”).

(1) Application number/design registration number: 30-202-017803/30-0313447

(2) Acquisition of a design right: Registration of transfer from Non-Party Scar, Lee Young-hee on December 14, 2002

(3) Date of application/registration: June 14, 2002/ November 26, 2002

(4) Explanation of the Speaker: Polypropthr material is polyprop and used as a smoking ceiling board by combining it with interior roof materials at the time of constructing a building.

(5) The essential point of the creation of a design: The article that is the object of the design is “shot-dried board for smoking” and is a combination of shapes and shapes as expressed in the registered design of the attached drawing.

(B) On June 14, 2002, Lee Young-hee filed an application for design registration with the name of the product subject to design as "heat for construction", and on August 17, 2002, revised the name of the above product as "the defect tent", following the revision of the name of the product, and the nature of the design creation was also revised as above. On August 23, 2002, the correction was made on August 23, 2002, by re-revision the description "the defect tent board" as "the sound dried board" among the essential points of the name of the product and the design creation as "the sound dried board", and submitting a correction of the drawing correction to correct the static map and the exhaust map as the registered design of this case on November 26, 2002.

(C) The Plaintiff is the registered design of this case, and the Defendant produces each smoking tent as the design of each of the following specifications 1. and 2. The Defendant, using each of the above infringed design products, constructed as shown in the annexed construction specifications using each of the above infringed design products. All of the above products consisting of polypole sphere, have the function of cutting and smoking, has two kinds of smoke and criticism, and one product is 0.61 square meters in length (2 meters in length, 0.305 meters in width) and 0.125 meters in thickness.

(D) Meanwhile, before the application of the registered design of this case, the Plaintiff installed a tent smoking plate using the comparative design indicating the attached drawing prior to the application.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1, 2, Eul evidence 6-3, 4, 7, 8, Gap evidence 7-1, 2, 30, Gap evidence 45-1 through 4, Gap evidence 47-1 through 4, Gap evidence 53-2, Gap evidence 84, Gap evidence 94-1, 98, Eul evidence 2-1 through 5, Eul evidence 3-1 through 7, Eul evidence 11-2, Eul evidence 15, Eul evidence 15, 20, 22, 23, Eul evidence 27 through 32-1, Eul evidence 2, Gap evidence 45-4, Gap evidence 31 through 47, Eul's overall office of education, Eul evidence 3, Eul evidence 41-4, Eul evidence 37, Eul's overall office of education, Eul evidence 1-1, evidence 2, Eul's evidence 32-4, 341 through 47

(2) Determination criteria

As seen earlier, as seen earlier, the registered design of this case, the comparative design, and each of the Defendant’s infringed designs are the smoking tent, with the same function and use as that of the expressed goods, and the similarity of the goods is recognized. On this premise, in determining the similarity of each of the above designs, the similarity of each of the above designs should be determined not by separately comparing each element constituting the design, but by separately comparing each element, depending on whether those who observe and observe the appearance as a whole feel a different aesthetic sense. In this case, the similarity should be determined from the perspective of whether the part which is most easily leading the attention of the person who is aware of the design as the essential part, and there is a difference in the aesthetic sense by observing it, as well as at the time of the use of the goods expressed by the Speaker (see Supreme Court Decision 200Hu129, May 15, 2001). Thus, the whole part of the design shall be compared with the shape of the protruding body, which is mainly observed after construction of each of the above designs.

(3) Validity of the registered design of this case

(A) Comparing with the comparable intent

[Ground for recognition] Gap's evidence 17 through 19, 26, 34, Eul's evidence 5-1, 2, Eul's evidence 2-1 through 5, Eul's evidence 3-1 through 7, Eul's evidence 10-1 through 10, Eul's evidence 16-1 through 18, Eul's evidence 25, Eul's evidence 36-1 and 2, respectively.

In light of the ground plans among the drawings of the attached design and the comparative design, each of the above designs is identical in that both protruding parts are continuous protruding parts at regular intervals and protruding parts are identical in terms of ground plans. However, ① The protruding part of the registered design of this case which is able to stick out on the ground plan is high in one side and the opposing part is low, thereby forming a rectangular-type, and the rectangular-type protruding part is a small number of brooms and protruding part is protruding from the body of the central body, while the comparative Speaker sets out a certain height from the body of the central body at the same height of protruding part, and the height of protruding part is the same as that of the upper body height of the protruding part, and the registered design of this case is formed in both sides of the body of the body of the defendant and the similar part of the registered design of this case which is protruding out again from the upper body of the body of the body of the defendant to the upper body of the protruding part of the protruding part.

(b) The issue of amendment to the application

First, we examine whether the intent of the design has been changed by revising the name, etc. of the goods subject to the design before the decision of registration after the Plaintiff applied for the registration of the registered design of this case.

In other words, "L6", "L6-10", "L6-10", "L6-13", and "L6-131", which are classified as a whole of the above evidences, are classified as a whole to be considered as a whole the purport of the arguments. In full view of the following circumstances, the "satisf for construction" and the "satisf for construction", which are the names of goods described at the time of application for the registered design of this case, or the names of goods corrected thereafter, are classified as "L6" (satisf for construction inside and outside, wall board, wall board, floor board, floor board, etc.) and the "L6-131", and the small classification, "L6-131" (satisfying sound, soundproof, sound, etc. of the registered design of this case, which are the same as those of the registered design of this case, are not identical before and after the application for the examination of the design of this case, and the name of the revised "satisfy, etc., like the design of this case.

Therefore, the defendant's assertion of the above part of the registered design of this case, which is premised on the fact that the revision of the registered design of this case constitutes a change of the substance, is without merit.

(4) Comparison between the registered design of this case and the defendant's infringement design

(A) Determination criteria

A design right is granted to a combination of new shapes and shapes of goods, so if a design registration is made upon an application, including the shape and shape of the publicly notified area, even if the registration has already been made, it shall not be granted exclusive and exclusive rights to the publicly notified area. Even if the registered design and the design compared thereto are identical or similar to the publicly notified area, if the remaining distinctive parts, excluding the publicly notified area, are not similar to those of the registered design, the compared design does not fall under the scope of the right to the registered design (see Supreme Court Decision 2003Hu762 delivered on August 30, 2004).

As seen earlier, in observing each of the above designs with the shapes and shapes wherein the protruding part above the body of the body of the person concerned is the essential part, the fact that there is protruding part above the body of the smoking board has already been announced by the comparative design before the application of the registered design of this case. Therefore, the specific shapes and shapes of protruding part should be examined by considering the specific shapes and shapes of protruding part as the scope of the right of the registered design of this case.

(B) Determination on the grounds of infringement 1.

[Based on the recognition] The evidence Nos. 6-1 through 8, the evidence Nos. 22, the evidence Nos. 45, the evidence Nos. 46-1 through 4, the evidence No. 55-2, 3, 4, the evidence Nos. 88-1, 2, 90-1 through 6, the evidence Nos. 10-5 through 10, the video products No. 25, and the purport of the whole pleadings No. 25

① From among drawings 1. Each of the above drawings, each of the above designs forms lower than one point out from the center. However, the registered design of this case is a rectangular shape, while the shape of protruding part is not protruding out from the outer end of the protruding part, the height of protruding part’s edge does not reach the degree of external ventilation, but rather, the two shapes of protruding part are continuously arranged in two consecutive shapes, i.e., the upper part of the protruding part connected to the front part of the above protruding part. The registered design of this case is not completely connected to the inner part of the protruding part, and the shape of protruding out part is not easily connected to the outer part, while the two shapes of the registered design of this case are not connected to the outer part of the protruding part, inasmuch as the shape of protruding out part is not clearly distinguishable from the inner part of the protruding part, and the shape of protruding out part of the registered design of this case is not connected to the outer part.

(C) Determination as to grounds for infringement 2.3.

[Based on the recognition] Evidence Nos. 7-1, 2, 22, 23, 24, 53-1, 53-2, 5, 67, 68, 69, 89, 90-1 through 6, and 25 of the Evidence Nos. 7-1, 22, 23, 24, 53-5, 67, 68, 69, 89, 90, and 25

In light of the ground plans among the drawings 2.3 and 3., each of the above designs is arranged at regular intervals in two consecutive columns, the floor of protruding part is protruding more protruding than the body body, and the shape of the shape attached to the outside of the body body of the above infringement is the same as the shape of the body of the registered design in this case. However, in light of the above City/Do and Do, the protruding part of the registered design in this case is composed of a slope which is lower than the outer part in the center, and the outer part of protruding part is composed of a slope, and the inner part of protruding part is well-known, and the shape of protruding part is clearly distinguishable from the shape of the registered design in this case, and the shape of protruding part is clearly distinguishable from the shape of the part in this case.

(5) Sub-committee

Therefore, the design 1. 1. is a design similar to the registered design of this case, and the design of this case 2. 3. is not similar to the registered design of this case. As to the design of this case 1., the defendant infringed the plaintiff's right to registered design of this case by using the design of this case only. Therefore, the defendant shall not engage in an act of manufacturing, selling, etc. smoking, singing, refining, or heating materials using the design 1. , and the defendant's office, etc. shall not be obliged to discard the products using the design of this case 1.

(3) The plaintiff's representative director of the defendant's representative director, and the defendant's representative director of the non-party Kim Jong-jo requested the defendant to fulfill each of the above obligations. However, the plaintiff's right to registered design of this case was infringed only by the defendant and there is no evidence to prove that the defendant's representative director infringed the defendant's right to registered design of this case jointly with the defendant. Thus, in seeking the performance of the duty of omission such as prohibition of infringement, the non-party's claim for the performance jointly and severally with the non-party Kim Jong-jo cannot be judged as to this, since there

2. Claim for damages;

(a) Occurrence of liability for damages;

As seen earlier, the Defendant infringed the Plaintiff’s right to registered design of this case by executing 1. The Defendant is obligated to compensate for the damages suffered by the Plaintiff due to such infringement.

(b) Scope of damages;

(1) The plaintiff's assertion

The defendant sold the registered design product of this case to the plaintiff 5,025 won, plus 13,00 won for the purchase of materials and 3,000 won for labor and 3,000 won for labor, which the plaintiff would have been able to obtain without the defendant's infringement, 40,914 won, calculated by deducting 16,00 won for the purchase of materials from 56,914 won for the plaintiff 11,89 won for each product of this case, 247,303,00 won (2,408,000 won for each construction work of this case, 13,78,000 won for each construction work of this case + 26,634,00 won for labor and 3,00 won for labor and 3,00 won for labor, + 307,300 won for each construction work of this case, 307,309,3000 won for each construction work of this case + 307,397,4005 won

(2) Determination

(A) ① Damages suffered by the Plaintiff are calculated by multiplying the volume of the products executed by the Defendant 1.3 to 1.0 5, by the amount of damages per unit of the products of this case (Article 64(1) of the former Design Act) x 1. The volume of the products executed by the Defendant 1.3 x 41 to 42 ; the number of damages per unit of the registered design x 70 m2 x 15 m2 ; the Defendant’s construction work completion x 36 m2 x 17 m2 ; the Defendant’s construction completion ; and the amount of damages per unit of the registered design 5 x 30 m2 m2 ; the Defendant’s construction completion ; and the amount of damages per unit of the registered design 11,12,16 m39,41 m2; and the amount of damages per unit of the registered design 70 m200 m2.

② As asserted earlier, the Plaintiff asserts that the above profits from the sale of the registered design product of this case are included in the Plaintiff’s damages caused by the infringement of the registered design of this case. However, in calculating the amount of damages caused by the infringement of the registered design of this case, the term “amount of profit per unit” as the basis for calculating the amount of damages caused by the infringement of the registered design of this case refers to the amount calculated by deducting all expenses, such as material cost, labor cost, management cost, etc. from the selling price when the registered design product is sold. However, if the registered design product is not simply sold, but works are performed by using it, the profits from the sale of the registered design are included in the cost of construction, but it is not necessarily deemed that the profits from the provision of labor are necessarily incidental to the sale of the registered design product. Therefore, the Plaintiff’s assertion

(B) ① The Defendant asserts that the amount of damages to be paid by the Plaintiff should be limited to the amount of profit gained by the Defendant. However, in principle, the damages suffered by the owner of the design right in accordance with Article 64 of the former Design Act concerning the calculation of damages shall be the amount of actual profit suffered by the infringer by preventing the owner of the design right from selling the products using the registered design in accordance with the same or similar design. However, considering the fact that it is not easy to prove it, the method of calculating the amount of profit per unit that would have been gained by the owner of the design right if there was no infringement (Article 64 (1)), the method of estimating the amount of profit gained by the infringer as the amount of damages suffered by the owner of the design right (Article 64 (2) of the same Act), the method of calculating the amount of ordinary royalty (Article 64 (3) of the same Act), and the owner of the design right shall be entitled to selective assertion the method of calculating damages under each of the above provisions, and the defendant's assertion is without merit.

(2) In addition, the defendant's assertion that the plaintiff could not be said to have been awarded a contract for the construction work that the plaintiff performed by the defendant because there are many companies that build the smoking tent in Korea as well as the plaintiff, and there are many companies that build the smoking tent in Korea, and therefore, it cannot be said that the plaintiff could not sell the registered design products for reasons other than the defendant's infringement, since the plaintiff could not sell the products due to reasons other than the defendant's infringement pursuant to the proviso of Article 64 (1) of the former Design Act, if there are circumstances that the plaintiff could not sell the products due to such reasons, the amount of infringement should be limited to the amount of the construction determined to have been actually performed by the plaintiff. Thus, it is difficult to view that the plaintiff could not sell the products of his registered design for reasons other than the defendant's infringement on the grounds that there are several companies that build

③ Furthermore, the Defendant promoted the supply and demand of the product as a result of the Defendant’s use of the home at the body 1’s body part as the main body part of the infringement design 1, and thereby facilitating the supply and demand of the product as a result of which electric wires, etc. can be easily constructed. Thus, in calculating the amount of damages, the Defendant’s use as the Defendant’s contributory portion should be considered as the Defendant’s contributory portion, and the degree of contribution should be at least 3/4 of the amount of damages suffered by the Plaintiff. As seen earlier, as seen earlier, the Defendant’s assertion that the product on the 1’s body part, unlike the registered design product of this case, can be easily constructed with electric wires, etc., but there is no evidence to acknowledge that the demand and supply of the product on the 1.th

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above recognition scope, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, the part against the defendant ordering payment in excess of the above recognition amount among the judgment of the court of first instance is revoked, the plaintiff's claim corresponding to the above part is dismissed, and the plaintiff's appeal and the defendant's remaining appeal are dismissed as per Disposition.

[Attachment]

Justices Kim Young-tae (Presiding Justice)