Appeal No. 2004-0152
Application No. 29/149,571
face of a smoking article container. Further, and most
importantly, this panel of the Board does not perceive that a
designer having ordinary skill would have derived a suggestion
from the respective designs of Huntley and Molins to
significantly and selectively alter the overall appearance of the
Tillander container design, as set forth in the rejection. In
particular, and akin to appellants’ point of view (brief, page
4), it appears to us that the overall Huntley package design is
not so related to the particular Tillander container design that
a designer would have been motivated to omit two distinct and
dominant aesthetic features of the Tillander design (the oval and
the window), as proposed, in seeking to effect the now claimed
design with its single, large circular transparency (window)
centered within the lower, major portion of the divided front
face of a smoking article container. Of course, the container
proportions of Tillander would also have to be altered. It is
for these reasons that we cannot support the obviousness
rejection on appeal.
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