Date of
Judgment:
28.02.1975
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure:
Judicial (Administrative)
Subject
Matter:
Industrial Designs
Main
text of the judgment (decision):
1. The final
appeal of the present case shall be dismissed.
2.
The costs of the final appeal shall be borne by the appellant.
Reasons:
Reasons
for the petition for final appeal made by the attorney for the final appeal,
MATSUDA Takashi.
It
is believed that Article 3, paragraph (1), item (iii) of the Design Act
(hereinafter referred to as "Act") provides, as a requirement for
registration of a design, that a design shall not be similar to the design
listed in item (i) or (ii) of the same paragraph (publicly known design), in
which case the point at issue is the similarity in terms of aesthetic
impressions, as observed from the standpoint of general consumers, between the
designs having identical or similar goods. To the contrary, the registration
requirement according to paragraph (2) of the same Article is based on the
shape, patterns, or colors, or any combination thereof, as widely known in
Japan to constitute an abstract motif that is irrelevant to goods (well-known
motif), and the same provision provides that a design shall not be something
that can be easily created by those skilled in the art. As such, in paragraph
(2) of Article 3, the restriction that the goods must be identical or similar
is removed, and the point at issue is based on the well-known motif above and
concerns the newness or uniqueness in the conception of the design, as observed
from the standpoint of those skilled in the art. Accordingly, the similarity
according to item (iii) of paragraph (1) of Article 3 and the easiness to
create according to paragraph (2) of the same Article are different in the
basis of the respective ideas, and thus it must be said that the judgment of
the court of prior instance, based on the interpretation that the meaning of
similarity according to item (iii) of paragraph (1) of the same Article is the
same as the easiness in creation, to the effect that item (iii) of paragraph
(1) of the same Article provides for refusal of registration concerning a
design that can be easily created from the design listed in item (i) or (ii) of
paragraph (1) of the same Article, is erroneous (Supreme Court Decision of 1970
(Gyo-Tsu) 45; judgment rendered on March 19, 1974, by the Third Petty Bench;
refer to Minshu [Notes on Civil Cases], vol. 28, no. 2, page 308).
According
to the decisions made in the court of prior instance, (1) the back side of 2
the Design, which is at issue in the present case, should be ignored because of
its function, and (2) the entire shape of the Design is common, and (3) upon
comparison between the Design and the Cited Design, whether or not the surface
of the main body is divided into eight equal parts or six equal parts, whether
or not the width of the brim (or flange) is uniform, whether or not there is a
ribbon or a binding part thereof, and whether or not there is a black design on
the surface of the main body are minor differences, none of which is enough to
attract observers' eyes in the entirety. As such, the above judgment can be approved
in light of the constituent parts of the two designs. Next, the combination of
colors as pointed out as a difference between the two designs in the court of
prior instance (black and yellow in the Design, dark red and orange in the
Cited Design) is, in short, merely a combination of two colors even by taking
into consideration the difference in lightness and hue, which were pointed out
in the court of prior instance. Furthermore, as determined in the court of
prior instance, the bicolor combination of the Design is very common, and thus
it is difficult to say that the difference in the color combination of the two
designs is necessarily noticeable. In that case, it is unavoidable to consider
that the two designs are similar based on the comparison of the Design and the
Cited Design upon observation of the two designs in the entirety, and it is
reasonable to interpret that the Design falls under Article 3, paragraph (1),
item (iii) of the Act in terms of its relationship with the Cited Design, which
is a publicly known design.
Given
the foregoing, the judgment of the court of prior instance to maintain the
claim that the Design cannot be registered due to its applicability to item
(iii) of paragraph (1) of the same Article is justifiable in its conclusion in
spite of lacking the proper process in reaching the decision.
Consequently,
the arguments made by the appellant cannot be accepted.
Therefore,
the court unanimously renders the judgment as per the main text pursuant to
Article 7 of the Administrative Case Litigation Act, and Articles 401, 95, 89,
and 93 of the Code of Civil Procedure.
(This translation is
provisional and subject to revision.)