Appeal No. 2004-0152
Application No. 29/149,571
portion of the divided front face of the smoking article
container.
As a basic reference, the examiner applies the Tillander
design for a container for lingerie or the like and indicates
(answer, pages 4 and 5) that it is similar to appellants’ claimed
design.1 According to the examiner (answer, page 5), the only
differences in the basic reference are the oval shaped indicia,
the rectangular shaped transparent window, and the overall
container proportions. To overcome the aforementioned
deficiencies, the cosmetic product package design of Guthrie and
the cigarette packet design of Lin are applied by the examiner
for their respective portrayals of a circular shaped transparent
window and the proportions of a cigarette packet.
As appreciated by the examiner, the basic reference lacks
the appellants’ ornamentally consequential feature of the
appearance of a single, large circular transparency (window)
centered within the lower, major portion of the divided front
1 While not so stated, the basic Tillander reference is
apparently viewed by the examiner as a “Rosen-type” reference,
i.e., it shows something in existence, the design characteristics
of which are basically the same as the claimed design.
5
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