유럽 디자인보호규정상의 수리조항(Repair Clause) 고찰 및 우리 디자인보호법으로 도입가능성 검토

The owner of a design right is able to monopoly the right for exploiting in the scope of protection of the registered design given by the law. However, someone argues that the right of exclusive exploitation on the industrial design right should be restrained in case of the complex product such as a piece of vehicle which has special feature like the monopolization de facto or the monopoly of market. This means that the holder could not claim the infringement on his industrial design against the other when he uses a piece of replacement for the purpose of the repair so as to restore its original appearance. Recently, the CJEU(Court of Justice of European Union) made a decision related to so-called ‘repair clause’ prescribed in EU design regulation. It is worth reviewing the ruling in that the Court had presented the criteria of application on the piece of replacement for vehicle. In particular, the study on whether introduction of ‘repair clause’ will be an alternative or not in our country will be an opportune review in considering that the bills for restricting the industrial design right on replacement parts for vehicle had been proposed at the National Assembly. The legislative work to amend the Industrial Design Protection Act will be necessary to introduce the repair clause. In fact, the necessity of the repair clause in our country should be decided in consideration of the special nature of industrial structure and the present situation on the market of spare parts in the automobile industry.