유럽 공동체디자인 제도에서의 전체적 인상의 대비 방법과 우리 실무에 주는 시사점

Abstract

Considering the practice related to the comparison method of the overall impression in RCD system of EU, we can get the following suggestion for our practice. First, the confusion theory of the trademark law should not be used immoderately to decide the similarity of design. The unique test for design infringement should be established to protect a design as a design. Second, the similarity of design should be decided through side-by-side comparison in principle, but an isolated(indirect) comparison may be necessary in any particular circumstance. However, the doctrine of imperfect recollection in the trademark law should not be used at this time. Third, the utilization relation of design may come into existence both where any ornament/color is added to the shape of design and where any accessory is added to the main body of design. Fourth, it is necessary to include the following requirement, ‘the particularity of pre-registration design should be discerned from other components’, in the instructions of Supreme Court on the utilization relation of design. Fifth, although individual features need to be inevitably written into sentence and individual comparisons need to be made in deciding the similarity of design, it should keep in mind that the final stage of the decision should be done with overall observation.