디자인의 합리적 보호를 위한 신규성과 창작비(非)용이성의 인적(人的)판단기준 정립 방안

This article provides brief overview of criteria of subject in determination of ‘novelty’ and ‘non-creative easiness’ in Design. Key requirements for design protection in most countries are ‘novelty’ and ‘non-creative easiness’ or ‘individual character’ as depending on the particular national law. Generally speaking, for establishing novelty, a design must be new and the new design needs to vary from other existing designs. By the way, non-creative easiness question is directly related to the issue of novelty in design because an examination of characterizations of creative design is held from an angles of novelty and similarity based methode. Whether or not it has creative character depends on whether the design, compared to earlier designs, creates overall the same impression on the user, in other words, whether the design could have been easily created by a person with ordinary skill in the art to which the design pertains. The problem is that from whose point of view originality or similarity must be judged. Furthermore, what constitutes its novelty or non-creative easiness may differ from country to country and indeed the expression itself varies from country to country. For example, the reference entity for determining of non-creative easiness in Korean Designs Protection Act is a person ordinary skilled in the art of the design at issue. But Korean Designs Protection Act does not define the concept of the person ordinarily skilled in the art of the design. In addition, it should be noted that Korean Designs Protection Act does not stipulate the criteria of subject in determination of similarity. However, it is important for the owner of design right and the third party to set clear criteria of subject in determination of similarity through the creation of an explicit provisions in Korean Designs Protection Act. Concerning such a maintenance legislation, it may be well refer to the Japanese Designs Act or Community Designs Regulation in particular. The concept of criteria of subject in determination of novelty and non-creative easiness in Designs must be understood as balancing validity and enforceability of the design right.