유럽연합 공동체디자인 제도에서의 신규성 평가에 관한 고찰

Abstract

In registered community design(RCD) system of the European Union, the novelty of a RCD depends on whether the differences in comparison with prior designs are immaterial details. Differences in immaterial details here refer to differences that would reasonably be expected to not be easily recognizable unless the observer pays special attention to it. In general, if an observer compares two designs side-by-side with special attention, the difference is easily recognizable. As a result, the threshold of novelty in the community design system can be easily passed. This seems to be very different from the novelty test in Korea. The novelty test in Korea is different in that it focuses on whether the main features of the two designs are common, whereas the novelty test in Europe focuses on whether the differences between the two designs are immaterial details. In practice in Korea, the process of novelty testing is complicated and difficult in that it is necessary to find out the main features of a design and check whether they are substantially same. In comparison, the process of novelty testing in Europe is relatively simple and easy in that it is the process of determining whether the differences between the two designs are immaterial details. Due to these differences, it is very easy for community designs in Europe to pass the novelty test, but it is very difficult for designs in Korea to pass the novelty test. In practice in Korea, it seems unreasonable to make the novelty test too difficult in that creativity test is added as a requirement of registered design. It is necessary to properly adjust the threshold of novelty test in korea. This paper only looked at novelty tests in Europe, and how to reflect this in practice in Korea will be reviewed in a follow-up paper.