디자인의 동일 또는 유사 여부 판단 ―대법원 판례를 중심으로―

Modern society is product-oriented one. Various products that are manufactured and sold stimulate consumers’ desire. Hence, the manufacturer tries to make products that are equipped with beautiful appearance as well as excellent quality and functions. For consumers, who want to express their personalities through their products as a total fashion, regards a design on their products as an important decision factor for buying the products. This design is created from constant research and efforts, not naturally. Strong legal protection for the design is required because the design, which is difficult to be created, is easy to be copied. Therefore, design protection law tightly protects an issued design: applied designs which is same and similar with publically-known, publically-used ones are denied due to lack of novelty. In this context, it is important legal issue to determine whether the compared designs are same or similar each other because this sameness or similarity is used when determining novelty of design, pre-application, expanded pre-application. Also, they are used when determining the scope of the issued design’s right and protection. It is highly important to legal theory and solution for legal dispute to study on the criteria of design’s sameness and similarity, which is the most important factor for design protection. In addition, more understanding for new cases is required in the legal system of design protection law and intellectual property law. Also, more leading cases, which do not harm legal stability and seek detailed plausibility, are needed to be settled.