디자인의 신규성 판단과 관련한 대법원 판결의 분석 – 대법원 2020. 9. 3. 선고 2016후1710 판결을 중심으로 –

The novelty of a registered design should be determined based on whether the differences found in the registered design attract the viewer’s attention as new design features and whether these differences substantially affect the overall impression of the design. First, in the case of the subject, if we examine whether the differences found in the registered design attract the attention of the viewer, considering the location where the differences exist, the area ratio they occupy, the degree of novelty, and the way the product is used, it is assessed that such differences are sufficient to attract the attention of the viewer. Second, in order to determine whether the differences have a substantial impact on the overall impression of the design, a relative comparative evaluation must be made between the differences and the commonalities. Thus, if the differences are evaluated as outweighing or at least equaling the commonalities, then such differences should be considered to have a substantial effect on the overall impression. In the case of the subject, when a ordinary observer compares the differences and commonalities relatively, the commonalities can be evaluated as relatively strong in relation to the area ratio. However, considering that the difference is that it is located on the front of the product, making it easily visible when used, and that it is possible to change the design in various ways, it seems to be relatively strong compared to the commonalities. Considering this relative comparative evaluation, it can be assessed that the differences exceed the commonalities or at least have the same level of impact. Therefore, in the case of the subject, the registered design should be considered to have new design features that are enough to distinguish the two designs (make them look different) when compared to the opposing design, and thus satisfy the requirement of novelty as a registered design.