Appeal No. 99-0837
Application No. 29/074,268
whether a design is primarily functional or
primarily ornamental the claimed design is viewed in
its entirety, for the ultimate question is not the
functional or decorative aspect of each separate
feature, but the overall appearance of the article,
in determining whether the claimed design is
dictated by the utilitarian purpose of the article
(citations omitted).
In the present case, the configurations of such features
as the parting line and the bottom of the drinking glass are
not dictated by functional considerations alone. Instead,
these features may have multitude of different configurations.
Accordingly, the mere fact that these features may relate to
certain functions does not mean that the claimed design is
devoid of ornamentality. In our viewpoint, the overall
appearance of the claimed design is not dictated by the
utilitarian purpose of the article, thus requiring
consideration of the foregoing distinctions in determining the
patentability of the claimed design.
These differences and the resulting overall appearance of
the claimed design are not to be viewed in the context of the
“average observer” as argued by appellant on page 4 of the
brief. Instead, the relevant viewer is a designer of ordinary
capability who designs articles of the type claimed. In re
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