의장법의 개정방향에 관한 소고

A Study on the Revision Proposal of Design Act

This is the study about how to revise our current design act. Our current design act consists of the substantial examination system(SES) and non-substantial examination system(NSES). From 1998 we have a dual system. We introduced the NSES for the short-term life cycled products. The rights conferred through SES and NSES are same: monopolistic right. So many designs without qualification have exclusive rights. Those are hindering the development of design industry. It must be changed. This paper propose the abolishment of dual system. But it does not mean to turn back to the pre-1998 system. It is out of date and inefficient for all designs to be examined substantially to be registered. Even though all designs should be registered to gain the design right, it need not be examined whether it fulfills the substantial requirement. If only formal and procedural requirements are fulfilled, it could be registered. But before the right-holder enforce the right it must be undergone substantial examination. So substantial examination is pre-requite for the enforcement. It must be based on the request of right holder. The time of the request for the examination must be limited like patent law. The nature of right from registration is monopolistic and the right has a block effect. This paper opposed the two-tier system: opposition to the adoption of unregistered design right system(UDRS). The major problem is the uncertainty. As [Australian Law Reform Report] says a manufacturer may be uncertain whether his or her product is so similar that it will be taken to be a copy. And in a sense we have already UDRS. It is in the Unfair Competition Lawand Copyright Law. Not common-place design is protected from so-called dead copy by Unfair Competition Law, and copyright law protect some designs from copying. So there is no need to introduce the UDRS into the Design Act itself