디자인의 기능성 요건 관련 EU 판례의 동향과 시사점

The doctrine of functionality as a passive requirement for design protection exists in most jurisdiction, and Korea also adopted it in Article 34, Para. 4 of the Design Protection Act. European Union introduced a provision excluding features of appearance of a product which are solely dictated by technical function from design protection. The interpretation of this provision is being developed through the CJEU Doceram decision and subsequent case-laws. The functionality requirement excludes design protection due to concerns about distinguishing it from patents and hindering competition. The latter is considered more important compared to trademark or copyright system. It also complements the partial design system and replaces the aesthetic requirement. However, the functionality is not widely discussed in Korea. This appears to be due not only to the influence of examination and trial practices, but also to the difficulty of assessing functionality. Not only is the wording itself open to interpretation, but the ultimate subject of the assessment is the function related to technology. By referencing the EU's case-law, it's necessary to consider various factors that be considered in fact-finding. Fortunately, the revision of the Design Examination Guideline of MOIP allows for consideration of more than just the existence of alternative designs. However, there are some points where the Guideline is unclear and there is a need for improvement in relation to related design systems.