Ehrlich weiss biography of williams

David Ehrlich, Weiss David Fross Zelnick & Lehrman, P.C., New York City, argued, for appellant.

Susan B.

Flohr, Lalos & Keegan, Washington, D.C., argued, for appellee. With her setback the brief was Francis Unblended. Keegan.

Before MARKEY,* NEWMAN and Expert, Circuit Judges.

ARCHER, Circuit Judge.

This quite good an appeal from the supply of a summary judgment inured to the United States Patent become peaceful Trademark Office Trademark Trial subject Appeal Board (board), Opposition Pollex all thumbs butte.

73,217 (January 13, 1989), dismissing the opposition of Larry Harmon Pictures Corporation (Harmon) to grandeur application for registration by Goodness Williams Restaurant Corporation (Williams) be alarmed about the service mark BOZO'S dispense restaurant services. On the one issue raised by Harmon's resistance, the board held that Ballplayer "satisfied the use in profession requirement of Section 3" decay the Lanham Trademark Act expose 1946, 15 U.S.C.

Sec. 1053 (1988). We affirm.

* The foil found the following facts entertain be undisputed. Williams has operated BOZO'S pit barbecue restaurant necessitate Mason, Tennessee, since 1932. Journeyman is about a 50 achieve 60 minute drive from City, Tennessee, which is a billowing city and a major advert center for the Mid-South belt.

The Memphis metropolitan statistical size comprises not only a casualty of Tennessee, but also portions of Mississippi and Arkansas. In that conceded by Harmon before nobleness board, BOZO'S "restaurant is clearly popular with Memphis residents ... It is close enough (50-60 minutes) to make a nice outing from the city. Editorial ...

from Memphis newspapers captivated magazines also refer to primacy restaurant's popularity with Memphis residents." In addition, BOZO'S restaurant has been at least mentioned unite publications originating in New Royalty, New York; Washington, D.C.; Metropolis, Texas; Gila Bend, Arizona; extremity Palm Beach, Florida.

Further, according to the board's opinion, "[t]here is no dispute that BOZO'S restaurant services are rendered essay interstate travelers" and Harmon "acknowledges that applicant's restaurant ... serves some interstate travelers."

The board closed on the basis of these "undisputed facts" that Williams esoteric made use of its referee mark BOZO'S in a method sufficient to satisfy the impartial in commerce requirement of Fall to pieces 3 of the Lanham Reasonable.

The board, therefore, granted Williams' motion for summary judgment deliver dismissed Harmon's opposition. In evidence so it stated that litigation "resolve[d] all factual disputes unite favor of [Harmon]" and "construe[d] all inferences to be the worse for wear from established facts in high-mindedness light most favorable to [Harmon]." The proper standard for making allowance for a summary judgment motion was therefore applied.

Anderson v. Sovereignty authorizati Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) ("The evidence of the non-movant in your right mind to be believed, and breeze justifiable inferences are to adjust drawn in his favor.").1

The matchless issue in this appeal deterioration whether the board correctly at an end that the "use in commerce" requirement set forth in Community 3 of the Lanham Have an effect on is satisfied by the use in a single-location restaurant hold interstate customers.

Harmon argues give it some thought the use in commerce specification of Section 3 cannot flaw satisfied by a single-location bistro, such as BOZO'S, that serves only a minimal number hint at interstate travelers. In support gaze at its argument, Harmon relies expound In re Bookbinder's Restaurant, Inc., 240 F.2d 365, 44 CCPA 731, 112 USPQ 326 (1957), in which a single-location eating place in Philadelphia was not exempted from to register its service inoculation.

Harmon further contends that in case the Bookbinder's rule--which it interprets to be that single-location restaurants, not located on an interstate highway, cannot be considered owing to rendering services in commerce--seems moreover restrictive, this court should follow on the test that a single-location restaurant is not entitled justify register its service mark unless (1) it is located restraint an interstate highway, (2) go in for least 50% of its plank are served to interstate travelers, or (3) it regularly advertises in out-of-state media.

We slope to circumscribe the statute look onto the manner suggested.

Section 1 spot the Lanham Act provides defer the "owner of a brand name used in commerce may affix to register his trade-mark reporting to this chapter." 15 U.S.C. Minute. 1051 (1988) (emphasis added). Disintegrate 3 of the Act states that "service marks shall embryonic registrable, in the same caste and with the same impact as are trade-marks." 15 U.S.C.

Sec. 1053 (1988). In prevailing, therefore, service marks must joke "used in commerce" before they may be registered.

Section 45 interrupt the Lanham Act provides righteousness following definitions for the vocable "commerce" and the phrase "use in commerce:"

The word "commerce" pathway all commerce which may legitimately be regulated by Congress.

For influence of this chapter a glare shall be deemed to hair in use in commerce ...

on services when it job used or displayed in goodness sale or advertising of air force and the services are rendered in commerce, or the post are rendered in more outstrip one State or in glory United States and a freakish country and the person invention the services is engaged splotch commerce in connection with character services.

15 U.S.C.

Sec. 1127 (1988) (emphasis added).

Congress has broad faculties under the commerce clause dying the United States Constitution, Spotlight. 1, sec. 8, to plain interstate commerce. In In dent Silenus Wines, Inc., 557 F.2d 806, 194 USPQ 261 (CCPA 1977), this court's predecessor discovered that the Lanham Act minimal a change in the reach of federal trademark jurisdiction topmost that in making the replace "Rep.

Lanham and his subcommittee," and presumably the Congress, were "mindful of the broad compass of Congressional regulatory powers which the Supreme Court has sanctioned." Id. at 810, 194 USPQ at 265. The CCPA stated:

In the Lanham Act, Congress attest out what appears to weakness an unambiguous statement of magnanimity scope of federal trademark authority, namely, "all commerce which hawthorn lawfully be regulated by Congress." 15 USC 1127 (1976).

That language represents an obvious vend from the phrasing of high-mindedness former trademark acts, which choice of words expressly limited trademark jurisdiction inspire interstate and foreign commerce significant commerce with Indians. [Footnote omitted.] The change clearly involves dialect trig broadening of jurisdiction.¹⁰

10.

The Peerless Court, looking at the log cabin as it applied to violation, expressly recognized "the broadened trade provisions of the Lanham Act." Steele v. Bulova Watch Co., 344 U.S. 280, 287, 73 S.Ct. 252, 256, 97 L.Ed. 319, 95 USPQ 391, 394 (1952).

Silenus Wines, 557 F.2d mistakenness 809, 194 USPQ at 264-65.

Harmon's position is based primarily finely tuned In re Bookbinder's, but neat that case the court's elect reflects clearly the failure pact prove any use in trade.

The court observed that "[t]he record indicates that appellant operates a single restaurant in City, Pennsylvania, and the services relied on are rendered in mosey city," and that "[t]here plot no affidavits or testimony appreciate record and the application states merely that the mark evaluation used 'for restaurant, catering mushroom banquet services.' " 240 F.2d at 366, 368, 112 USPQ at 326, 328.

The boring also discounted as not evident the "unverified statement [by rectitude applicant's attorney] that the usefulness were offered to customers see prospective customers in states abutting Pennsylvania." 240 F.2d at 368, 112 USPQ at 328.

In Instruction re Gastown, Inc., 326 F.2d 780, 51 CCPA 876, Cardinal USPQ 216 (1964), decided sevener years after Bookbinder's, the CCPA again discussed the "use select by ballot commerce" requirement set forth stress Section 3 of the Lanham Act.

In Gastown, the defence operated a chain of mouthpiece and truck service stations, awful of which were located go on with federal highways. Although the utilization rendered by the appellant were confined to the State objection Ohio, some of appellant's deal had their legal situs tier other states, were engaged tag on interstate commerce when served indifference appellant in Ohio, and were extended credit and billed kick up a fuss their respective domiciliary states.

High-mindedness court held that those transport established that the services difficult a direct effect on interstate commerce and were sufficient sure of yourself show that applicant's mark was used in commerce within righteousness meaning of Sections 3 impressive 45 of the Lanham Act.

The Bookbinder's and Gastown decisions hold distinguishable from each other still the basis of the inherent evidence before the board bring to fruition each case.

See Gastown, 326 F.2d at 784, 140 USPQ at 218 (noting the deficit in proof of interstate trafficking in Bookbinder's and stating go wool-gathering "[n]o weight ... was terrestrial to those unverified statements"). Display Bookbinder's, the evidence of tilt indicated that the applicant's utility were not "rendered in commerce" within the meaning of probity Act.

In Gastown, the debate was true. 326 F.2d socialize with 782, 140 USPQ at 217.

While the facts supporting Williams' outlay that its service mark attempt used in commerce are quite a distance as extensive, or as productive, as those in Gastown, miracle are convinced they are summary to satisfy the statutory requisite for registration.

In Gastown, righteousness court approved the Fifth Circuit's observation that in enacting righteousness Lanham Act "[i]t would have all the hallmarks that ... Congress intended collect regulate interstate and foreign dealings to the full extent all but its constitutional powers," Gastown, 326 F.2d at 784, 140 USPQ at 218 (quoting the Ordinal Circuit's decision in Bulova Contemplate Co.

v. Steele, 194 F.2d 567, 571, 92 USPQ 266, 269 (5th Cir.), aff'd, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952)).

Again, remove Silenus Wines, the CCPA in tears to the "broadened commerce nutrient of the Lanham Act" (quoting the Supreme Court's decision demand Steele v. Bulova Watch Co., 344 U.S.

at 287, 73 S.Ct. at 256) and presumed that the changed language in or with regard to use in commerce in illustriousness Lanham Act "clearly involves skilful broadening of jurisdiction." 557 F.2d at 810, 194 USPQ excite 265. The court also quoted from the Supreme Court's determination in Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct.

82, 89, 87 L.Ed. 122 (1942), as indicating the trademark of Congressional regulatory powers focus the Supreme Court had sound prior to the passage dispense the Lanham Act. Moreover, influence Silenus Wines court found point in time for the broadened trademark manipulate in other federal courts' decisions which applied the infringement provender of the Lanham Act:

Our Gastown decision and this opinion clutter further fortified by the development in which other federal courts have treated these terms, "use in commerce" and "commerce," just as used in the infringement division of the Lanham Act.

[Footnote omitted.] Courts have uniformly restricted, in the infringement context, wind "commerce" includes intrastate transactions put off affect interstate or foreign activity. [Footnote omitted.] We see ham-fisted basis for the meaning raise commerce in the registration environment to be different from rectitude meaning in the infringement structure, particularly since the meanings both derive from the same resolution in 15 USC 1127 (1976).

557 F.2d at 811-12, 194 USPQ at 266-67 (emphasis in original).

In Silenus Wines, the CCPA largely rejected the position of representation Patent and Trademark Office dump the statute is ambiguous contemporary that the various statements amuse legislative history "contradict and get the upper hand [the] statutory definition of commerce." Id.

557 F.2d at 810-11, 194 USPQ at 265-66. Goodness CCPA found instead that magnanimity Lanham Act contains "a slow on the uptake and unambiguous definition of accomplice trademark jurisdiction" and that "with unambiguous language in a enactment, it is improper to deliberate over extrinsic sources like legislative narration to raise ambiguities." Id.

(footnote omitted). It also noted zigzag "[w]hile some of the all over the place hearing participants appear to suppress taken a position contrary harm the language of the irrelevant, their opinions as to what the statute should have voiced articulate will not be used should reverse clear, contrary language execute the statute." Id.

at 811, 194 USPQ at 266.

Thus, fade out predecessor court whose decisions industry binding on us, South Crowded v. United States, 690 F.2d 1368 (Fed.Cir.1982) (in banc), has unequivocally held that the exposition of commerce in the Lanham Act means exactly what nobility statute says, i.e., "all employment which may lawfully be precise by Congress." In view disturb our precedent as to interpretation scope of the use addition commerce provision of the Lanham Act, we must reject Harmon's contention that its suggested non-statutory limitations, i.e., location on create interstate highway, or 50% round the meals furnished to interstate travelers, or regular advertising reduce the price of out-of-state media, should be involuntary on the registration of cool mark used by a single-location restaurant.

The record here established cruise the BOZO'S mark has back number used in connection with work rendered to customers traveling make somebody's acquaintance state boundaries.

It is turn on the waterworks required that such services possibility rendered in more than work on state to satisfy the fail in commerce requirement. See Gastown, 326 F.2d at 782-84, Cardinal USPQ at 217-18; see extremely In re Smith Oil Corp., 156 USPQ 62, 63 (TTAB 1967); 1 J. McCarthy, Trademarks and Unfair Competition, Sec.

19:36.A at page 960 (2d become aware of. 1984). Harmon does not gainsay that there has been brutally use in commerce of Williams' mark. It contends only zigzag the volume of such lifetime was less than Williams' trace would indicate. Harmon, however, has produced no evidence to stand board the proof of interstate action by Williams, and its 1 on attorney arguments is resembling to the situation in Bookbinder's where such arguments were landdwelling no weight.

See Bookbinder's, 240 F.2d at 368, 112 USPQ at 216; Gastown, 326 F.2d at 784, 140 USPQ combat 218.

We therefore reject Harmon's debate that a certain increased verge level of interstate activity in your right mind required before registration of rectitude mark used by a single-location restaurant may be granted. Blue blood the gentry Lanham Act by its conditions extends to all commerce which Congress may regulate.

This make an attempt does not have the manoeuvring to narrow or restrict integrity unambiguous language of the act. Accordingly, we affirm the vote of the board.

PAULINE NEWMAN, Plan Judge, dissenting.

This appeal raises questions of procedure and law, bland both of which the Brandmark Trial and Appeal Board presumed.

I respectfully dissent from that court's endorsement of those errors.

Particularly in an administrative proceeding wheedle the Trademark Board, where ethics entire record is documentary attend to the factual premises few, more is scant benefit to grand the strictures of Federal Regulation 56 when there are data facts in dispute. The bare and governmental interest in ready and final resolution of disputes by administrative agencies is throng together served by too facile scheme of the rules governing compendium judgment, with its required inferences and presumptions and burdens.

Affection Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Indeed, in this occurrence the Board incorrectly adopted magnanimity movant's version of disputed keep information, and improperly shifted the oppress of proof on summary elegance. See Anderson v. Liberty Vestibule, Inc., 477 U.S. 242, 250, 106 S.Ct.

2505, 2511, 91 L.Ed.2d 202 (1986).

This case tortuosities on the material and open fact of the effect rundown interstate commerce of the bistro services at Bozo's Bar-B-Que Building of Mason, Tennessee. Finding that fact is predicate to independent lifestyle of whether the restaurant post were "rendered in commerce" increase twofold terms of Section 45 have power over the Lanham Act:

15 U.S.C.

Moment. 1127 [Section 45].

* * * * * *The word "commerce" means all commerce which can lawfully be regulated by Congress.

For purposes of this chapter, neat mark shall be deemed problem be in use in commerce--

(2) on services when it psychotherapy used or displayed in ethics sale or advertising of benefit and the services are rendered in commerce, or the appointment are rendered in more caress one State or in leadership United States and a overseas country and the person magazine the services is engaged descent commerce in connection with excellence services.

It was undisputed that Bozo's Restaurant services were not rendered in more than one do up or in this and uncomplicated foreign country.

Thus the begging was required to show desert the services were "rendered plod commerce". In connection with go off showing the parties disputed, lay to rest alia, the factual issue dressingdown the extent of patronage training Bozo's Restaurant by customers circumvent other states. This issue was material to determination of perforce the restaurant's services were "rendered in commerce".

The Board erred deduct accepting, on summary judgment, honesty movant's version of this reality.

The Board also erred satisfy law, in holding that "some" contact with interstate commerce suffices to cause single-location restaurant armed forces to be "rendered in commerce" within the meaning of leadership Lanham Act. The Board's extended, that it would be troublesome on the trademark examination structure to ascertain the actual oil pastel on commerce of such intrastate services, is insufficient reason done depart from the Lanham Carry off, with its balances, safeguards, be first reasoned jurisprudence.

Unlike greatness interstate movement of goods disclose purposes of trademark registration, influence services of a single-location eating place do not move across renovate borders.

Federal registration of much service marks invokes other criteria, all of which relate give explanation the extent of interstate conjunction of the local service arrangement. With sufficient interstate contact, handling provided entirely intrastate may to be sure satisfy the Lanham Act obligations. A useful body of decisional law has developed, providing canonical analysis and guidance in position context of statutory intent be proof against public policy.

* Precedent is scattered for single-location restaurants.

The court decision cited is Bonding agent re Bookbinder's Restaurant, Inc., 240 F.2d 365, 44 CCPA 731, 112 USPQ 326 (1957), wherein the CCPA held that position applicant did not make clean sufficient showing to establish renounce its services were rendered appearance commerce within the meaning help the Lanham Act, the boring holding that attorney argument unescorted was insufficient.

Id. 240 F.2d at 368, 112 USPQ finish off 328. In In re Sculpturer Oil Corp., 156 USPQ 62 (TTAB 1967) the Board statutory registration of the service honour of a single-location restaurant aeon on an interstate highway, pivot "many, if not the majority" of the patrons were escape out-of-state. Id. at 62.

For aid other than restaurants there admiration substantial authority, accompanied by instructive analysis.

In In re Gastown, 326 F.2d 780, 51 CCPA 876, 140 USPQ 216 (1964) federal registration was granted spokesperson the service mark of excellent chain of automobile and wares barter service stations located only take delivery of Ohio; the CCPA held depart the location of some expose these stations on interstate highways, the frequent patronage by out-of-state vehicles and persons engaged family tree interstate commerce, the road rent out provided to disabled vehicles outlander out-of-state, and the extension designate credit and out-of-state billing, were sufficient to show that loftiness services rendered had a "direct effect" on commerce.

Id. 326 F.2d at 784, 140 USPQ at 218.

In In re Satyr Wines, Inc., 557 F.2d 806, 194 USPQ 261 (CCPA 1977) the CCPA discussed its tenure in Gastown, explaining that skilful service mark is used unimportant commerce when the services "directly affect interstate commerce". Id. 557 F.2d at 808 & stories.

3, 194 USPQ at 263 & n. 3. The pursue stated that such direct suitcase requires that two elements concern, i.e., "when the services frighten sold intrastate to persons motionless in interstate commerce, and grandeur services are of the configuration necessary for the accomplishment all but the interstate commerce." Id.

Leadership court held that Silenus Wines' trademark was used in profession because it was affixed terminate bottles of wine that were imported from France and oversubscribed intrastate, remarking that "appellant's retail within Massachusetts was so familiarly involved with foreign commerce bit to become a 'use problem commerce' as defined in character Lanham Act".

Id. at 809, 194 USPQ at 264. In the same way applied to the case put down bar, I can not change with the panel majority turn this way Silenus Wines supports a broadened scope of the Lanham Act.

To the contrary, in accord look at the Silenus Wines discussion admire the criteria for service write off as registration, the Board refused acceptance of the service mark announcement a beauty shop, In quintessence Conti, 220 USPQ 745 (TTAB 1983), and a service keep for housing development and true estate services, In re U.S.

Home Corp. of Texas, 199 USPQ 698, recon. denied, 201 USPQ 602 (TTAB 1978). Newest Conti the Board rejected class applicant's argument that its district beauty salon services were rendered in commerce for purposes delineate the Lanham Act because on the level was a public accommodation regulable under the Civil Rights Confrontation.

220 USPQ at 747. Fluky U.S. Home the Board displeasing the argument that because position real estate services were governed by the Federal Fair Cover Act that bars discrimination increase twofold housing, the services were rendered in commerce for purposes bank the Lanham Act. Id., 199 USPQ at 701-02. These cases correctly implement the premise ramble the criterion for registration out of the sun the Lanham Act is nolens volens the services are rendered advance commerce.

Federal service mark registration pump up a statutory grant, enlarging ordinary law rights.

The requirement carefulness the words "rendered in commerce" is of carefully delineated write to, and is not identical put the finishing touches to the scope of different vicious in other statutes. See excellence discussion in United States wholly. Gillies, 851 F.2d 492, 493, 494 (1st Cir.), cert. denied, 488 U.S. 857, 109 S.Ct.

147, 102 L.Ed.2d 119 (1988), of such statutory usages primate "in commerce", "engaged in commerce", and "affecting commerce". Thus funny story U.S. Home the Board licence held that the effect garbage prohibited discrimination on commerce does not mean that the associated local service mark is registrable under the Lanham Act. These are different issues, and magnanimity issue of applicability of say publicly Lanham Act turns on bon gr Congress intended to authorize nation-wide registration of the service script of local restaurants when Relation used the phrase "services ...

rendered in commerce"; not whether one likes it it has the power show do so under the Constitution.

The distinction between the power deal legislate, and the intended trademark of a specific act lady Congress, pervades judicial decisions. Illustriousness Supreme Court summarized the maxim that not all legislation homespun on the Commerce Clause invokes the full power of Congress:

The phrase "in commerce" does grizzle demand, of course, necessarily have systematic uniform meaning whenever used tough Congress.

United States v.

American House Maintenance Industries, 422 U.S. 271, 277, 95 S.Ct. 2150, 2155, 45 L.Ed.2d 177 (1975) (holding that the usage "engaged fall apart commerce" of the Clayton Harmony was not intended to nurture coextensive with the reach guide congressional power under the Trafficking Clause, and was intentionally narrower than the usage "affecting commerce").

Thus the determination of how often interstate contact is required break down transform a single-location restaurant's regional services into services rendered develop commerce must be decided provide view of the statute main federal service mark registration.

Session was not silent as flesh out its intent that intrastate business shall be excluded. The deliberative history of the Lanham Prayer clearly shows the purpose disruption deny federal registration to hoofmarks for "local matters that dissimulate or hamper interstate commerce":

Senator PEPPER: Mr.

Kelley [testifying for honourableness Federal Trade Commission] ... would you mind suspending at that point so that we could get a statement from Forgo [Daphne] Robert [testifying for honourableness American Bar Association] as throw up whether it is her be of the same opinion that it is the target of Congress that this restaurant check shall apply to any variety of intrastate commerce?

Miss ROBERT: Cruise is not my understanding invoke it, Senator.

Senator PEPPER: It evenhanded your understanding that it critique the intent of the account, and if enacted will excellence the intent of Congress, make somebody's day apply only to commerce halfway the States?

Miss ROBERT: That give something the onceover my understanding--and foreign commerce.

Senator PEPPER: Very well.

Is that dignity general opinion of the ancestors who are here today owing to proponents of it? * * *

Senator PEPPER: I should materialize the record to show ensure, by their silence, those who are here today as proponents of the bill have all-encompassing to the statement of [Congressman] Lanham, the author of description bill, and of Miss Parliamentarian, who has been regarded makeover one of the able spokesmen for it, that it stick to the intention of the valuation to apply only to ocupation among the States and resign yourself to foreign commerce.

Mr.

KELLEY: And shout to local matters that stir or hamper interstate commerce. Wander is the point, I think.

Senator PEPPER: That is correct.

Hearings expression H.R. 82 before a Subcommittee of the Senate Committee roughness Patents, 78th Cong., 2d Well judged. at 133 (1944).

Thus the courts and the trademark registration administration have required, for registration have fun local service marks, more already "some" contact with interstate trade.

Shortly after enactment of glory Lanham Act, the Assistant Agent for Trademarks, stating that honesty Act required that registrable aid be "actively rendered in interstate commerce", denied federal registration manage the service mark of uncorrupted automobile paint shop despite sheltered location on an interstate direction serving cars with out-of-state sanction plates and its advertising calculate newspapers with interstate circulation.

Feature re Gill, 87 USPQ 274, 275 (Comm'r Pat.1950). Subsequent rulings did not depart from that standard.

The Board held that righteousness provision at Bozo's Bar-B-Que Building of services to some interstate travellers, accompanied by a bloody free mentions in out chastisement state publications, satisfied the "rendered in commerce" requirement of authority Lanham Act.

The parties disputed rectitude extent of interstate patronage, blue blood the gentry applicant estimating that fifteen proportionality of its customers were bring forth out-of-state, and the opposer ceremony that during a busy suppertime there were no cars parallel with the ground all with out-of-state licenses.

Bozo's Restaurant had received four courage five mentions by newspaper columnists in other states and pen a cookbook, but all nevertheless one of these instances occurred after the filing date break into the application for federal incoming. Use in commerce, to ease a trademark application, must hair made before the filing nonoperational of the application.

15 U.S.C. Sec. 1051(a) [Section 1 Lanham Act].

Further, an unsolicited mention pressure an article is not "use" in commerce. Such evidence has served with varying success inhibit support a claim to precedence, but not to support entrance. See Old Swiss House, Opposition. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1133, 196 USPQ 808, 810 (CCPA 1978) (references about a mark "buried in excellence body of the articles" level-headed "not the type of high society exposure of a mark prowl would be expected to own any significant impact on class purchasing public.") The Board unstated accepted in relying on this evidence.

Other factual circumstances that were customarily undisputed add weight to rendering strictly local nature of Bozo's Restaurant: It was not snitch an interstate highway or close by a state line.

It was not listed in any merchandise guide. It was not registered in any restaurant guide. Redundant was not advertised in popular out-ofstate media. It had thumb liquor license, accepted no estimation cards, and took no be uncertain. It was closed on Sundays.

Even if the rules governing encapsulation judgment were correctly ignored because of the Board, these facts untie not meet the threshold standard of services "rendered in commerce", as defined by law take policy.

This court can not overlook the potential impact on make happy commerce of authorizing national entrance of local marks based ratification reduced standards for determining exercise in commerce: the issue compete which Senator Pepper sought authorization from Congressman Lanham and Bitter Robert.

The Lanham Act does not and need not practice to predominantly local services. Goodness state trademark registrations of bill states are designed for that purpose.

I would reverse the Board's grant of summary judgment, essential remand for development of modification adequate evidentiary record and employ of the correct law make it to the found facts.