Similarity of design (Infringement case)
(Conclusion) Basically, the hidden shape shall not be taken into consideration when considering similarity. Defendant’s design is not Similar to the registered design. (Design right owner lost.)
“Use relationship” when only part of the product is visually recognizable from the outside.
Since Defendant’s horn is contained in spindle, it does not appear in the distribution process and cannot be visually recognized.
The hidden shape, etc., of an article shall not be taken into consideration when considering similarity.
The appearance-recognizable head of the design of the Defendant’s horn is markedly different from resistered design.
Whether or not “use relationship” is established cannot be considered when hidden shape that does not appear in the distribution process and cannot be visually recognized. In addiition, when Defendant’s horn is replaced, photographs or explanatory drawings showing the shapes of Defendant’s horn are not recognized by customers.
<Writer: Hideki Takaishi (Attorney-at-law licensed in Japan and California)>