Similarity of design (Infringement case) <File wrapper estoppel>
(Conclusion) It is prohibited to assert what is contradictory to what an applicant asserted during the application procedure.
⇒Defendant’s design is not Similar to the registered design. (Design right owner lost.)
Plaintiff, in their opinion during the application procedure, claimed that the applied design was not similar to the prior design by emphasizing the difference in the number of squeezed parts.
In this case, however, Plaintiffs asserts that the difference in the number of squeezed parts does not affect the aesthetic of the resistered design.
Such contradict assertion is prohibited based on File wrapper estoppel or faithful principle.
<Writer: Hideki Takaishi (Attorney-at-law licensed in Japan and California)>