Test Your TTAB Judge-Ability: Are "B.C. PIZZA" and "B&C PIZZA" Confusingly Similar?
Applicant sought to register the mark B.C. PIZZA for "dine in and carry out services featuring pizza and other Italian related cuisine and drinks," but pro se Opposer Satek, Inc. claimed likely confusion with its registered mark B&C PIZZA for restaurant services. Satek's brief was late, Applicant submitted no evidence or testimony, and the evidentiary record was "thin" [not sure about the pizza - ed.]. Was Opposer's claim more than half-baked? Satek, Inc. v. B.C. Pizza, Inc., Opposition No. 91171803 (November 30, 2010) [not precedential].
Yes. Satek's 2(d) claim may have been thinly supported, but it was not half-baked.
The Board excused Satek's tardy filing since the delay was minimal. Satek failed to properly submit its registration, but not to worry, since Applicant had counterclaimed for cancellation and did not dispute the status and title of the registration. Applicant dropped its improperly pleaded fraud counterclaims rather than re-plead them.
The Board found that the presumptions accorded Satek's registration pursuant to Section 7(b) of the Trademark Act (validity of the mark and the registration, ownership of the mark, and the exclusive right to use the mark with the recited services), coupled with the identity of the services and the near-identity of the marks, were enough to carry the day for Opposer. Not a surprise, eh?
And so the Board sustained the opposition.
TTABlog comment: There appears to be a lot of history between these two Michigan-based pizza shops. One is in Boyne City and the other in Bay City. That is enough to confuse me.
Are these two outfits really in interstate commerce? Should either of them have a federal registration?
Text Copyright John L. Welch 2010.