디자인보호법상 유사판단의 일본에서의 이원론적 해석론에 관한 고찰

The legal principle of determining similarity in Korean courts applies dualism. This accepts the theory of dualistic interpretation of determining similarity of designs in Japan, and the relevant legal principles are applied by distinguishing between the stage of establishing rights and the stage of exercising rights in determining similarity of designs including publicly known part. Accordingly, despite using the same term for “similarity” of designs, the Korean courts show legal principles that make the specific application methods and interpretation of the relevant legal principles seem different every time the relevant regulations are applied. Therefore, it is necessary to examine the theory of dualistic interpretation of determining similarity of designs in Japan, which influenced the dualism of determining similarity of designs in Korean courts. And it is time to review the application of this dualism in Korea by analyzing in detail the history of determining similarity of designs in Japan and the recently used interpretation theory. In Japan, since Article 24 (2) of the Design Act was introduced in 2006, the Intellectual Property High Court has ruled a unified legal principle on methods of determining similarity of designs, which is similar to the legal principle of the Patent Court of Korea. Namely, rather than applying complex theory of dualistic interpretation, it shows a simplified appearance of determining similarity based on the principal part(dominant characteristics) of the designs by comparing the commonalities and differences of the designs’ sense of beauty. In addition, considering the interpretation theory in Japan on consideration of a publicly known design in determining similarity of designs, it is necessary to be cautious about determining similarity on the premise that the publicly known part of the registered design is unconditionally excluded when grasping the principal part of the design. In conclusion, this paper studies critically on problems of dualism of determining similarity under the Design Protection Act in the Supreme Court’s decision by comparing the theory of dualistic interpretation in Japan, and proposes solutions concretely on those problems.