earticle

영어

Under Korean Design Protection Act, a design is defined as the shape, pattern, color or combination of these in an article that produces an aesthetic impression in the sense of sight. Accordingly, aesthetic factor must be incorporated into an article to be protected as a design. Besides an aesthetic element, the obstacle for design protection of computer generated icon is whether the icon can be an article. In general, an article means whatever is apprehended as having actual, distinct, and demonstrable existence. However, the icon does not have actual and distinct existence and then, is not an article. Despite that, many countries such as the U.S. and Japan protect an icon as design pursuant to design act. Korea also protects a computer-generated icon under design law. The U.S. protects the icon as design patent based on U.S. Manual of Patent Examining Procedure(MPEP) and common law rather than patent law itself. Likewise, Japan has protected the icon under examination guidelines for design, but recent amendment to design law includes a computer generated icon into protected article. However, Korea still protects a computer generated icon pursuant to the examination guidelines. In roy opinion, protection of the icon under the guidelines improperly expands the meaning of article under Design Protection Act and will destroy existence of design protection in itself. Therefore, if the protection of a computer generated icon is demanded under design law, proper amendment to Design Protection Act must be accomplished. Moreover, such amendment must be reviewed cautiously considering overall structure of intellectual property law.