형태변화가 있는 디자인의 유사판단 <휴대폰 포장용 상자에 대한 특허법원 2009. 6. 5 선고, 2009허1736 판결 및 대법원 2010. 9. 30. 선고, 2010다23739 판결을 중심으로>

Design as creative work for appearance of goods is usually recognized visually in static state. However, all the designs are not in static state without change. The decision of nullity and the decision related to a prohibition of infringement and a claim for damage are the case of determining similarity relating to the design with change. I will examine specific contents about it on this paper. First of all, the decision of nullity said that the mobile phone package box, which registered in design rights, should regard as the variable design by the function according to the function, according to the enforcement regulation of the Design Protection Act. The decision of nullity made the problem clear for the first time, which has debated for some time in practiced field. Also, it has significance in clarifying the point that the specific method of open/closed design should follow the enforcement regulation. On the other hand, the decision on a prohibition of infringement and a claim for damage said that the target goods of comparison designs undergo changes in their forms as a matter of course by use due to their function or characteristic like closing of both inner cover and outer cover, only closing of an inner cover, and opening of both inner cover and outer cover. Also, in this case, the decision clarified that each part can be an important element.