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 CHAPTER
Ⅶ TRIAL
Article 68 【Invalidation Trial of Design
Registration】
(1) In the following cases, an interested
person or an examiner may request a trial to
invalidate a design registration. In such
cases, request may be made with respect to each
design for which an application for registration
of multiple designs is made pursuant to
Article 11bis.
(ⅰ) the registration has been effected contrary
to Articles 3, 5, 6, 7(1), 10, 12(3), 16(1)
and
16(2) of the Design Law or Article 25 of
the Patent Law as applied under Article 4 of
the
Design Law;
(ⅱ) the registration has been effected with
respect to an application for registration of
a
design filed by a person who is not entitled
to obtain the design registration;
(ⅲ) the registration has been effected contrary
to the provisions of a treaty; or
(ⅳ) after the registration, the owner of
the design right is no longer capable of enjoying
the
design right under Article 25 of the Patent
Law as applied under Article 4 of the Design
Law,
or the registration no longer complies with
a treaty.
(2) A trial under paragraph (1) may requested
even after the extinguishment of a design right.
(3) Where a trial decision invalidating a
design registration has become final and conclusive
(except a design registration of a similar
design), the design right shall be deemed never
to
have existed; however, where a design registration
falls under paragraph (1)(iv) and a trial
decision invalidating the design registration
has become final and conclusive, the design
right shall be deemed not to have existed
from the time when the design registration first
fell
under the said paragraph.
(4) Where a trial decision invalidating a
design registration of a principal design has
become
final and conclusive, the design registration
of a similar design shall also become invalid.
(5) Where a trial decision invalidating the
design registration of a similar design has
become
final and conclusive or where the design
registration of a similar design becomes invalid
under paragraph (4), the design right of
the similar design shall be deemed not to have
existed from the beginning. However, where
a trial decision invalidating a design registration
of a similar design under paragraph (1)(iv)
has become final and conclusive, the design
right
of the similar design shall be deemed not
to have existed from the time when the design
registration of the similar design first
fell under the said paragraph.
(6) Where a trial for invalidation under
paragraph (1) has been requested, the presiding
trial
examiner shall transmit a copy of the request
to the exclusive licensee of the design right
and to any other persons who have registered
rights relating to the design registration.
Article 69 【Trial to Confirm the Scope
of a Design Right】
The owner of a design right or an interested
person may request a trial to confirm the scope
of a design right protected by the design
registration.
Article 70 【Trial for Granting Non-exclusive
License】
(1) If the owner of a design right, or exclusive
or non-exclusive licensee, desires to obtain
permission to exercise the right provided
for in Article 45(1), and if the other party
refuses to
grant the permission without justifiable
reasons or if it is not possible to obtain such
permission, the said owner or exclusive or
non-exclusive licensee may request a trial for
the
grant of a non-exclusive license to the extent
necessary to work the registered design.
(2) If a person who has granted a non-exclusive
license under paragraph (1) desires to work
the registered design of the person who has
been granted such non-exclusive license, and
if
the latter refuses to give permission or
if it is impossible to obtain such permission,
the
former may request a trial for the grant
of a non-exclusive license within the scope
necessary to work the registered design.
(3) A non-exclusive licensee, who was granted
a non-exclusive license under paragraph (1)
or (2), shall pay remuneration to the patentee,
owner of the utility model right, owner of the
design right or exclusive licensee thereof;
however, if payment is not possible for reasons
beyond the control of the said non-exclusive
licensee, the remuneration shall be deposited.
(4) A non-exclusive licensee under paragraph
(3) shall not work the patented invention,
registered utility model or design right
or similar design without payment of remuneration
or
deposit thereof.
Article 71 Deleted
Article 72 【Mutatis Mutandis Application
of Provisions of the Patent Law】
The provisions of Articles 132ter, 132quater
and 139 to 176 of the Patent Law shall apply
mutatis mutandis to trials concerning designs.
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