식품디자인의 디자인권과 심사쟁점에 관한 고찰

In line with the booming dining industry and expansion of convenience stores, more and more processed foods have been developed. Consequently, protection of food designs is drawing more attention. As a food design is recognized as subject to protection throughout the world, there is no problem with filing an application for registration of a food design for typical food products. In the past, a food design used to be subject to partial examination (non-substantial examination) but has become subject to substantial examination since 2014. As a result, there is a consistency issue between designs previously registered without substantial examination and the ones newly registered based on substantial examination. Furthermore, the number of applications for registration of a food design is small and there are nearly no ruling cases concerning food design, which leaves examiners to determine at their discretion. On top of that, neither the requirements for foods which include natural products nor the protection scope by food type is clear. Since foods make use of natural products, the requirements for being an article of manufacture and industrial applicability for food designs are different from other industrial designs. Also, there is a great limitation to determining creativity owing to diverse foods that have been produced throughout history. Furthermore, a lot of foods do not have a certain shape per se and rely on a container containing the food, which is in violation of a single application for a single design. Against this backdrop, it is necessary to clearly define registration requirements and protection scope of food designs by referring to court rulings in Korea and Japan. Also, the design examination guidelines need to be amended.