Ex parte BONKO - Page 4




          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.                        
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