Appeal No. 2003-0656 Page 6
Application No. 29/124,773
a coarse appearance as depicted in appellant’s design. This is
so since the shorts shown in Sportpages suggests a fashion look
wherein the main shorts material has a coarse surface view and
the sides give the impression of a smoother appearance. That, of
course, would yield an opposite position for those relatively
rough and smooth surface ornamentations and a readily discernible
difference in visual impression than that given by the claimed
design.
In addition, the examiner has not fairly established that
the shorts of Sportpages would have plainly suggested to a
designer of ordinary skill in the art an extension of the side
patch to the underside of the leg openings of the shorts of
Metimex so as to result in the distinct appearance of the claimed
design including an extension of the contrasting look of the
sides to the leg underside as shown in figure 4 of appellant’s
design.
Consequently, we agree with appellant that there is a
significant difference in the overall visual impression of the
claimed design over the appearance of the shorts of Metimex taken
with Sportpages. On this record, the examiner has not
established the prima facie obviousness of the claimed design
based on the evidence relied upon.
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