
    69 F. (2d) 660
    In re Hall
    (No. 3247)
    United States Court of Customs and Patent Appeals,
    March 19, 1934
    
      Harold E. Oole for appellant.
    
      T. A. Hostetler (Howard 8. Miller of counsel) for the Commissioner of Patents.
    [Oral argument January 11, 1934, by Mr. Cole and Mr. Miller]
    Before Ckahaai, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   Graham, Presiding Judge,

delivered the opinion of the court:

The appellant filed an application in the United States Patent Office for a patent upon a design for a tennis racket bowhead. The design represented an oval bowhead of the usual type, made of laminated wood, which consisted of five layers, the two laminations on the outside being of a medium dark color, the central lamination being of a light color, and two intermediate narrower laminations being of a dark color. The patentability of the design is claimed to lie in the arrangement of these parts, and that by such arrangement the bow of the racket, as viewed from either side, presents a pleasing and novel effect. Both tribunals of the Patent Office were of opinion that the design was not patentable, and rejected the same on the following references:

Tliomley, 1532095, March 31, 1925.
Rastetter, 1555608, September 29, 1925.
Rastetter, 1594852, August'3, 1926.
Ayers (Br.), 1855, 1 sheet, February 28, 1885.

We have examined the references and are of opinion that the rejection was justified in view of the prior art, as referred to by the office. The patent to Thornley shows a bow having three layers, the two outside layers being of wood and the middle layer of hard rubber. The Rastetter patent, No. 1555608, discloses a laminated bow of four strips of wood, while the Rastetter patent, No. 1594852, shows a bow consisting of six laminae. The Ayers ¡latent discloses a bow Having five laminae. The specification of this last-named patent discloses that the strips of material have the lines of the grain thereof arranged at different angles where they join, thus making stripes of contrasting appearance. When the bow is assembled, as shown by the drawing accompanying the Ayers patent, these stripes or laminae seem to differ from each other in color. As a matter of fact, with the exception of the fact that the appellant’s design shows the two dark wood laminae to be thinner than the other laminae, little difference can be perceived between the appearance of the Ayers bow and that of appellant. This feature, in our opinion, is not sufficient, in itself, to constitute patentability.

Patentability cannot rest alone upon the contrasting colors of the laminae. For many years the Patent Office has held, and we think properly, that a new blending or arrangement of colors is not patentable in a design “ unless a new esthetical effect is produced' — an original idea indicated.” Ex parte Weinberg, 1871 C.D. 244; Ex parte Niedringhaus, 1875, C.D. 22; Ex parte Traitel, 1883 C.D. 92. While this court has not heretofore had this question before it, as applied to design patents, we have frequently remarked that color alone will not render a trade mark registrable. Leschen & Sons v. Am. Steel & Wire Co., 19 C.C.P.A. (Patents) 851, 857, 55 F. (2d) 455, and cases therein cited.

It is not enough that a design be new, original, and ornamental. It must be also the result of the inventive faculty. In re Walter, 17 C.C.P.A. (Patents) 982, 39 F. (2d) 724.

We 'find ourselves in agreement with the decision of the Board of Appeals, and it is, therefore, affirmed.  