Appeal No. 2006-2074
Application No. 10/158,197
Thus, a “B” symbol for a bread knife in Sanelli’s set would give some
indication of the blade length as being suitable for bread, whereas an “M”
symbol indicating a meat knife would indicate a blade length that is suitable
for cutting meat.
Moreover, the appellants’ markings are nonfunctional descriptive
material and, therefore, do not distinguish the knives over knives having
different markings. See In re Gulack, 703 F.2d 1381, 1386, 217 USPQ
401, 404 (Fed. Cir. 1983). The appellants’ 8” bread knife performs the same
function of cutting bread whether the symbol on the butt end is “8”” or
“BREAD” or any other symbol such as a star. The appellants’ symbol,
whether it is “8”” or “BREAD”, performs the same function of providing the
information “8”” or “BREAD” regardless of the substrate on which it
appears. The appellants’ argument that the marking reduces wear on the
blade when being placed into and removed from a block (brief, page 1) does
not pertain to the functional relationship between the marking and the knife
but, rather, relates to the effect on the knife of being used in a particular
way.3 Regardless, even if the marking is functionally related to the knife,
Sanelli’s knife and symbol indicating the typology of foodstuff for which the
knife is used, e.g., bread or meat, have that functional relationship. One
would not have to pull Sanelli’s bread knife out of a knife block to
determine that the knife is not a meat knife.
3 That wear is reduced by the slots in the appellants’ block being oriented horizontally
(exhibit E, first page).
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