Appeal No. 2000-1221
Application No. 29/070,030
spaced central raised portions. The central raised portions
also appear to have the same shape as those of the appellant's
claimed design. Thus, from our perspective, Bonko '923
satisfies the Rosen test, in that it is a something in
existence, the design characteristics of which are basically
the same as the claimed design.
There is, however, a material difference between the
appellant's design and Bonko '923 which produces an overall
appearance that would be recognized as different by an
ordinary designer of tires. In particular, alternating ones
of the central raised portions of Bonko '923 extend in
opposite directions with respect to one another, while those
of the appellant's design all extend in the same direction.
Contrary to the examiner's contention that this difference is
de minimis (answer, page 4), it is our opinion that the2
aligned orientation of the central raised portions of the
appellant's design does affect the appearance of the claimed
design as a whole and the impression that the design would
2See Carter, 673 F.2d at 1380, 213 USPQ at 626.
4
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