Design Infringement in Korea: Whole-View and Dominant-Feature Tests

A registered design does not block every product that 'looks similar'. Infringement is decided in two layers — first whether the products are the same or similar, then whether the design itself is similar enough that an ordinary consumer perceives the same aesthetic impression. If those two layers are blurred, both infringement claims and design-around plans collapse.

In practice, infringement analysis is two-sided: enforcing against copies and clearing space for new launches use the same legal tools but pull in opposite directions. The Korean courts have settled the law as whole-view observation supplemented by dominant-feature observation. Below is the four-step framework practitioners use to apply it.

The Foundational Doctrine

Korean courts compare designs as a whole rather than dissecting them into components. Whether the look-and-feel evokes the same aesthetic impression in the eye of an ordinary consumer is the key question. Within that whole, the dominant features that draw the viewer's attention carry extra weight; differences there can break similarity even when the rest matches.

Korean Patent Court precedents repeatedly confirm this approach. The standard wording: 'similarity is judged by overall observation that asks whether the viewer perceives a different aesthetic impression, with the rule that designs are deemed similar when the dominant features match even if details differ.' Both the whole and the dominant features must be analysed in tandem.

Similarity of designs is judged by overall observation of their appearance, asking whether the viewer perceives a different aesthetic impression. Where the dominant features are similar, designs are similar even if details vary somewhat.

Step 1 — Product Sameness or Similarity

Design infringement only arises between the same or similar products. The design examination guidelines define 'same product' as identity in both purpose and function, and 'similar product' as identity in purpose with different function. If the products fall outside that band, infringement does not arise no matter how similar the visuals look.

Step 2 — Whole-View Observation

Once products are linked, the comparison shifts to the design itself. The benchmark is the ordinary consumer, not a designer. The question is whether average buyers, in their typical purchase and use context, perceive the same aesthetic impression. Colour, texture, and the surfaces visible in actual use are factored in alongside shape.

1. Align drawings or photos at the same scale and angle
2. Compare all six orthographic views together with isometric views
3. Weight the surfaces actually visible in use (top, front)
4. Include colour and texture if represented in the drawings
5. Mark known prior art elements separately as 'public-domain features'

Step 3 — Dominant Features and Public-Domain Elements

When the whole-view comparison is borderline, courts add the dominant-feature analysis. The dominant feature is where the viewer's attention concentrates and, in practice, where the design's new creative contribution lives. Public-domain elements — features already known before filing — drop out of the registered design's scope and are de-weighted in the comparison.

Even where the registered design and the accused design share the public-domain features, if the remaining characteristic features are not similar, the accused design falls outside the scope of the registered design.

Step 4 — The Limits of Design-Around

Design-around is the practice of altering a product's appearance to escape a registered right. The doctrine above means that if the dominant feature stays the same, surface-level changes will not save you. Recolouring, redrawing public-domain elements, or tweaking surface patterns rarely succeeds. Genuinely safe design-around requires reworking the dominant feature itself into a different visual motif.

• Colour or material changes only — shape preserved → infringement risk very high
• Reworking public-domain elements — barely affects the registered scope → still likely infringing
• Adjusting proportions or curvature of the dominant feature — outcome depends on degree
• Replacing the dominant feature with a different motif — relatively safer, but the new motif must itself clear other registered designs

Practitioner Workflow — Two Sides of the Same Mirror

Enforcement and design-around use identical tools applied with opposite emphasis. The enforcing side highlights similarity in the dominant feature; the avoiding side highlights differences outside it. Define the position before running the analysis — running both views from the same template invites contradictory conclusions in the same memo.

Frequently Asked Questions

Q1. Isn't 'ordinary consumer' a vague benchmark?

The ordinary consumer is the average person who buys and uses that category of product — not a designer comparing every detail, and not a complete novice. In practice, take the typical buyer's first impression in a one to two second store glance as the reference. Stating that benchmark explicitly in the memo reduces argument later in the trial or appeal.

Q2. How does partial-design registration change the analysis?

A partial design covers only the registered portion. Infringement arises when that portion appears in the accused product in the same or similar form. But the position and proportion of that portion within the whole product also matter, so a pure isolated comparison is risky. Always include drawings that show how the part integrates into the whole.

Q3. Does the same doctrine apply to GUI or icon designs?

Yes — image designs (GUI, icons, dynamic visuals) are judged with the same whole-view and dominant-feature framework. The wrinkle is that the device or screen context affects scope, so identify which device and which state of the interface is being compared. For animated sequences, assemble per-frame captures alongside the drawings.

Q4. When in product development should design-around analysis happen?

Run it at the prototype stage, before tooling is locked in. Done after mass production starts, the cost of mould rework and inventory write-offs makes any negative finding hard to act on. At prototype stage, gather candidate registered designs, prepare dominant-feature maps, and produce a side-by-side memo to clear the launch path.