Appeal No. 1999-1568 Page 6
Application No. 29/063,397
Moreover, it is our opinion that even if Morris' tunnel
were modified to be transparent, it would not have resulted in
the overall design claimed by the appellants. In that regard,
it is our opinion that the visual impression of the
appellants' transparent cylinder, non-transparent border and
transparent end panels is significantly different from the
visual impression of Morris' tunnel even if modified to be
transparent. Specifically, as shown in the Figures 1, 3 and
4, the appellants' transparent cylinder is formed from two
pieces of transparent material. Each piece of transparent
material has an opaque semicircular band adjacent each
transparent end panel and two opaque longitudinal ribs (at the
top and bottom of each piece of transparent material as shown
in Figure 4). Thus, the overall visual impression of the
appellants' play tunnel (as viewed from the side) is that of a
transparent cylinder between two transparent end panels
wherein the transparent cylinder has an opaque border formed
from the two opaque semicircular bands and the two opaque
longitudinal ribs. This opaque border is more than a de
minimis change since the net effect of such change does affect
the appearance of the claimed design as a whole and the
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