디자인의 유사 판단 시 공지디자인의 참작

According to Supreme Court precedent, when determining the similarity of designs, known features of design are treated differently depending on whether it is a registration requirement determination or it is a scope of right determination. When determining the scope of right for a registered design, the prior art designs are taken into consideration and the importance of the known part is evaluated as low. Therefore, the known part is excluded from the key features of the registered design. Such criteria need to be changed, but until then, at least accurate application of the criteria is required. Specifically, when determining the scope of right for a registered design that consists of a combination of known features, the importance of the combination should not be lowered by treating them as known, based on the fact that each feature has been known. Therefore, in such cases, the combination of known features can also be a key feature of the design. In this case, it is not appropriate to view the extent of similarity of a registered design that consists of a combination of known features as being narrow or wide in a uniform manner, and it is necessary to determine it on a case-by-case basis by taking the prior art designs into consideration. An analysis of cases in Korea, the United States, and Japan shows that the extent of similarity of a registered design that consists of a combination of known features is affected by the level of novelty of the combination. The method of considering prior art designs when determining the scope of right for a registered design needs to be changed. The key feature of a design is the part that most easily attracts the ordinary observer’s attention in light of the nature, purpose, and form of use of the product. Thus, it is not reasonable to exclude some elements of a design from the key feature of a registered design simply because it is known to the public. It is reasonable to understand that the reason for taking into account the prior art designs when determining the scope of right of a registered design is to determine the extent of similarity of the registered design. There is also a need to change the way known features of a design are treated differently depending on whether it is a registration requirement determination or it is a scope of right determination. It is difficult and undesirable to determine the similarity of designs without considering the trends or context of prior art designs. The extent of similarity of a design must be determined in the context of prior art designs, and the necessity of considering prior art designs is no different when determining the scope of rights or when determining the registration requirements. Therefore, when determining the registration requirement for a design, it is necessary to consider the prior art designs to determine the similarity of designs. The three-way visual comparison method used to determine the scope of right of a registered design can also be used when considering prior art designs to examine the registration requirement of a design. In the process of evaluating the relative distance between the earlier prior art designs, the prior art reference and the applied/registered design, the prior art designs can be taken into consideration.