직물지에서의 모양의 이용과 디자인 이용관계의 성립 -대법원 2011.4.28.선고 2009후2968 권리범위확인(디) 판결

The sentence 2009Hu2968 judgment on April 28, 2011 by the Supreme Court is the first judgment of Supreme Court, which specifically clarified the definition of utilization of designs. At this point of time when the utilization of designs is estimated to likely grow rapidly, the above Supreme Court decision is expected to probably play a great role in solving a dispute of a relation to this utilization. In the above Supreme Court ruling, the utilization of designs is being premised to be possibly established even through the utilization of forms. Still, the utilization just of forms cannot establish the utilization of designs. However, the utilization of forms in fabric implies the utilization of shapes and forms. In the above Supreme Court judgment, what the utilization became a problem is what this utilization of shapes and forms became a problem. There are many cases that shapes and forms in design have creative value. If these shapes and forms are being utilized in other designs, the establishment of a relation to utilization is valid to be affirmed. In this sense, the proposition of the above decision is thought to be appropriate. Another issue in the above judgment is a problem about whether a relation to utilization is established even when some of shapes are hidden to be unseen. If the core part of shapes was concealed, the relation to utilization of designs needs to be denied. Also, even when characteristic peculiar to design resulted in disappearing, the relation to utilization of designs comes to be denied. The above decision is judging that some of shapes are hidden as for the issue, thus the characteristic peculiar to design resulted in disappearing. As a result, the relation to utilization of designs is being denied. When a part of attracting users' eyes disappeared in the post design, the relation to utilization of designs cannot be acknowledged. Thus, the conclusion of the above judgment is valid.