Black Iron Hospitality, LLC

Trademark Trial and Appeal Board

May 19, 2017

No. 86718731 (T.T.A.B. May. 19, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: May 19, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Black Iron Hospitality, LLC
_____

Serial Nos. 86718731 and 86718801
_____

Drew Whiting of Stahl Cowen Crowley Addis LLC,
for Black Iron Hospitality, LLC.1
Michele-Lynn Swain, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Taylor, Mermelstein and Kuczma,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Black Iron Hospitality, LLC (“Applicant”) seeks registration on the Principal
Register for the marks BLACK IRON and BLACK IRON TAVERN (in standard
characters) for:

1 On February 13, 2017, a couple of months after Applicant submitted its appeal brief filed
by Karen Hwang, Esq. of Axia Law, LLC, it filed a Revocation of Attorney and Appointment
of Attorney Drew Whiting of Stahl Cowen Crowley Addis LLC.
Serial Nos. 86718731 and 86718801
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Bar and restaurant services; Restaurant services, namely,
providing of food and beverages for consumption on and off
the premises in International Class 43.2
The Trademark Examining Attorney refused registration of Applicant’s marks in
Class 43 under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), citing
Registration No. 4683888 for the mark BLACK IRON PIZZA in standard character
form (“pizza” disclaimed) for “Pizza parlors” in Class 43, owned by BIP Penn Ave a/k/a
Black Iron Pizza Restaurant, as a bar to registration.
When the refusals were made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed and Applicant and the Examining
Attorney submitted briefs. Inasmuch as the two appeals involve similar marks, were
refused registration under § 2(d) based on the same cited Registration, and have
essentially identical records and legal arguments, we hereby consolidated them and
issue this single opinion. Trademark Trial and Appeal Board Manual of Procedure
(“TBMP”) § 1214 (January 2017). As set forth below, the refusals to register are
affirmed.
I. Likelihood of Confusion
Our determination of likelihood of confusion under § 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to the factors bearing on the

2 Application Serial Nos. 86718731 for BLACK IRON and 86718801 for BLACK IRON
TAVERN were filed on August 7, 2015, based upon Applicant’s allegation of a bona fide
intention to use the marks in commerce under Section 1(b) of the Trademark Act for the
services in International Class 43. Application Serial No. 86718731 also lists services in
International Class 35 which are not the subject of this appeal.
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likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods and/or services. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). We address these factors and any
others for which Applicant and the Examining Attorney have presented evidence or
arguments.
A. The similarity or dissimilarity of the marks as to appearance, sound,
meaning and commercial impression
We first consider the du Pont factor focusing on the similarity or dissimilarity of
the marks in their entireties as to appearance, sound, meaning and commercial
impression. du Pont, 177 USPQ at 567.
To the extent that Applicant’s BLACK IRON and BLACK IRON TAVERN marks,
and the cited BLACK IRON PIZZA mark, begin with identical term BLACK IRON,
when comparing the marks in their entireties, they are similar in sound and
appearance. Further, BLACK IRON is the prominent feature and dominant portion
of Applicant’s BLACK IRON TAVERN mark and the cited BLACK IRON PIZZA mark
given its location as the first part of the marks and, thus, the first words to appear
on any label or to be articulated when pronouncing the mark. See Palm Bay Imports
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark VEUVE
CLICQUOT because “veuve” is the first word in the mark and the first word to appear
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on the label); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers
must first notice the identical lead word); Presto Prods., Inc. v. Nice-Pak Prods. Inc.,
9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered”).
Turning to the meaning and commercial impression of the marks, the term
“BLACK IRON” as used in both of Applicant’s marks and in the mark in the cited
Registration, has the same arbitrary meaning; there is no evidence which suggests
that it describes or connotes anything about the bar and restaurant services provided
by Applicant or the cited Registrant’s pizza parlor services.
The disclaimed word “PIZZA” in the cited mark, and “TAVERN” in Applicant’s
mark, are at least descriptive of the identified services and do not alter the
commercial impression of the term BLACK IRON in the marks. Moreover, because
disclaimed matter is typically less significant or less dominant when comparing
marks, the term “BLACK IRON” is the dominant feature of Applicant’s and
Registrant’s marks. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1846 (Fed. Cir. 2000) (the “descriptive component of a mark may be given little weight
in reaching a conclusion on the likelihood of confusion,” quoting In re Nat’l Data
Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Restaurants,
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (DELTA is the
dominant portion of the mark THE DELTA CAFÉ where the disclaimed word CAFÉ
is descriptive of applicant’s services). While we are mindful that the marks are to be
Serial Nos. 86718731 and 86718801
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compared in their entireties, one feature of a mark may be more significant or
dominant in creating a commercial impression such as is the case with the term
BLACK IRON in the BLACK IRON, BLACK IRON TAVERN and BLACK IRON
PIZZA marks. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
In support of the registrability of its marks, Applicant presents evidence of four
pairs of third-party registrations “with the same sole difference being the word
‘PIZZA’ in the mark[s]” noting that they have been allowed to register despite being
in the same restaurant class3:

3 June 15, 2016 Requests for Reconsideration (Exhibit B, copies of TESS reports for
Registration Nos. 4294493 and 4900515; Registration Nos. 4838931 and 4337486;
Registration Nos. 1080646 and 4224743; Registration Nos. 2723817 and 4907036) pp. 4, 9-
23; Applicant’s Brief pp. 5, 7 (5 TTABVUE 6, 8). Registration No. 4907036 for the mark
Italian Village Pizza and Design includes the following geographical limitation: “Registration
limited to the area comprising the entire United States with the exception of the city of
Chicago, Illinois and an area comprising a three hundred mile radius outside the city of
Chicago, Illinois pursuant to Concurrent Use Proceeding No. 94000840. Concurrent
registration with Italian Village Restaurant, Inc., 71 West Monroe Street, Chicago, Illinois,
60603.”
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Unlike the identical terms found in the foregoing pairs of registered marks, the
identical two-word term in Applicant’s and Registrant’s marks appears in the
identical beginning position in each of the marks, and the common element is a strong
arbitrary term. Thus, when Applicant’s and Registrant’s marks are taken as a whole,
they create a highly similar commercial impression.
Additionally, it is well established that third-party registrations are entitled to
little weight on the issue of similarity because the registrations are not evidence that
the registered marks are actually in use or that the public is familiar with them. In
re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1167 n.5 (TTAB 2013) (citing
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)). Thus,
the existence on the register of other pairs of third-party registrations does not
provide a basis for registrability of Applicant’s applied-for marks. See AMF Inc. v.
Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Total
Quality Grp., Inc., 51 USPQ2d at 1477.
While differences exist between the marks when they are viewed on a side-by-side
basis, we find that in their entireties, Applicant’s marks and the cited mark are
substantially similar in sound, appearance, meaning and commercial impression,
inasmuch as they begin with, or are solely comprised of, the identical dominant term
BLACK IRON.
B. The similarity or dissimilarity and nature of the goods, channels of
trade and classes of consumers
We turn next to the du Pont factor involving the similarity or dissimilarity of
Applicant’s services (“bar and restaurant services; restaurant services, namely,
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providing of food and beverages for consumption on and off the premises”) to the
“pizza parlors” services in the cited registration. The question of likelihood of
confusion is determined based on the description of the services stated in the
application and registration at issue, not on extrinsic evidence of actual use. See Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1162 (Fed. Cir. 2014) (quoting Octocom Sys. Inc. v. Houston Comp. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)).
The goods or services need not be identical or directly competitive to find a
likelihood of confusion. See In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
Rather, they need only to be related in some manner or the conditions surrounding
their marketing are such that they would be encountered by the same purchasers
under circumstances that would give rise to the mistaken belief that the goods or
services come from a common source. See On-line Careline Inc. v. America Online Inc.,
229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); In re Total Quality Group
Inc., 51 USPQ2d 1474, 1476 (TTAB 1999).
Applicant argues that its services are readily distinguished from Registrant’s
services in that they are ‘“bar and restaurant services’ as well as ‘for consumption on
and off the premises’ to further narrow and distinguish Applicant’s services” from
those of the cited Registrant.4 Applicant maintains that its services are distinct and

4 Applicant’s Brief p. 7 (5 TTABVUE 8). Citations to the briefs in this opinion are to the
TTABVUE docket for Application Serial No. 86718731.
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do not overlap with Registrant’s services directed to “pizza parlors” which “is
specifically defined as ‘a shop where pizzas are made and sold.’”5
In addition to the definition of “pizza parlor” submitted by Applicant, a “pizza
parlor” is also defined as:
a) Another name for pizzeria.
Collins English Dictionary. Copyright © HarperCollins
Publishers6

A pizzeria is a place where pizza is made, sold, or
eaten.
Collins English Dictionary. Copyright © HarperCollins
Publishers7

b) A pizzeria.
Macmillan Dictionary © Macmillan Publishers Limited 2009-
20168

Pizzeria: a restaurant that serves pizza
Macmillan Dictionary © Macmillan Publishers Limited 2009-
20169

5 Applicant’s Brief p. 7 (5 TTABVUE 8), citing to Exhibit A of June 15, 2016 Requests for
Reconsideration, definition of “pizza parlor.” Although the online definition of “pizza parlor”
provided by Applicant was not verified, i.e., no information regarding the URL or the date it
was downloaded was provided, see TBMP § 1208.03, the Examining Attorney raised no
objection.
6 https://www.collinsdictionary.com/dictionary/english/pizza-parlour, May 1, 2017. The
Board may sua sponte take judicial notice of dictionary definitions, Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983), including definitions in online dictionaries that exist in printed
format or have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4
(TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). See also TBMP §
1208.04.
7 https://www.collinsdictionary.com/dictionary/english/pizza, May 1, 2017.
8 http://www.macmillandictionary.com/us/dictionary/american/pizza-parlor, 07/02/2016,
attachment to July 12, 2016 Requests for Reconsideration Denied pp. 23-24.
9 http://www.macmillandictionary.com/us/dictionary/american/pizzeria, 04/20/2016 and
07/02/2016; attachment to April 20, 2016 Office Actions p. 4 and attachment to July 12, 2016
Requests for Reconsideration Denied pp. 25-26.
Serial Nos. 86718731 and 86718801
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These dictionary definitions indicate that a “pizza parlor” is a restaurant that serves
pizza. Applicant’s recited “restaurant services” encompass Registrant’s “pizza parlor”
services. Unrestricted and broad identifications such as “restaurant services” are
presumed to encompass all services of the type described, including pizza parlors. See
In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (citing In re Elbaum,
211 USPQ 639, 640 (TTAB 1981)); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992). Thus, Applicant’s “restaurant services” are legally identical to the Registrant’s
“pizza parlor’ services, because they both include pizza parlors.
Additionally, the Examining Attorney submitted copies of six third-party
registrations, based on use in commerce, that serve to suggest it is common for the
same entity to provide bar and restaurant services, which include serving pizza,
under the same mark. While a mere six registrations is not highly significant
evidence, such registrations are at least consistent with the relatedness of Applicant’s
and Registrant’s services.10
On the other hand, Applicant contends that its services differ from Registrant’s
services because it provides “bar and restaurant services” and restaurant services
“for consumption on and off the premises” to further narrow and distinguish

10 See November 20, 2015 Office Actions at pp. 7-23: Registration No. 4082014 for Bar and
Restaurant services…Pizza parlors; Restaurant services …; Registration No. 4008488 for Bar and
restaurant services … Restaurant and bar services … Restaurant services featuring Italian Food and
Pizza … ; Registration No. 3974542 for Bar and restaurant services; … Restaurant and bar services;
… Restaurant services featuring Italian Food and Pizza … ; Registration No. 3974542 for Bar and
restaurant services; … Restaurant and bar services; … Restaurant services featuring pizza, breads,
Italian food, wine, beer, beverages … ; Registration No. 4012581 for Bar and restaurant services; Pizza
parlors; tavern services; Registration No. 4518200 for Bar services; pub services; brewpub services;
tavern services; restaurant services; and pizza parlor services; and Registration No. 4740579 for Bar
and restaurant services; … Restaurant services featuring Pizza and Sandwiches … .
Serial Nos. 86718731 and 86718801
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Applicant’s services from the cited Registrant’s services. However, the Internet
evidence submitted by the Examining Attorney shows that pizza restaurants
commonly provide bar services as well as a variety of food menu items for
consumption onsite, for takeout or for delivery. For example:
● Uno Pizzeria & Grill: offering appetizers, soups, salads, pizza, chicken, pasta,
seafood, steak, burgers and sandwiches, desserts, beer, wine and cocktails;
“take out deals” (April 20, 2016 Final Office Action pp. 6-12).

● Bertucci’s: offering pizza, pastas, flatbreads, sandwiches; “2 Go” take out deals
(April 20, 2016 Final Office Action pp. 13-17).

● Bugsy’s Pizza Restaurant: offering pizza, specialty sandwiches, salad and
sports bar; “We Deliver!,” Call or fax your order for delivery or pickup! (April
20, 2016 Final Office Action pp. 25-26).

● Pizza House Pizzeria Bar & Grill: offering pizza, pasta, chipatis, appetizers,
salads, sandwiches, entrees, desserts; delivery services (April 20, 2016 Final
Office Action p. 28).

● Heise Pizza Parlor: offering pizza, breakfast, salads, sandwiches, pastas,
desserts and alcoholic drinks; carry-out services (July 12, 2016 Request for
Reconsideration Denied pp. 8-12).

● Howie & Sons Pizza Parlor: offering pizza, pub, lunch buffet, appetizers; Call
ahead and place your order to be picked up!! (July 12, 2016 Request for
Reconsideration Denied p. 13).

In any event, a finding of likely confusion does not require that all of Applicant’s
services be identical — or even related — to the services in the cited Registration. It
is sufficient if any of Applicant’s services is related to any of the cited Registrant’s
services. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398
(TTAB 2007). Even if could be established, it is of no moment that Registrant’s pizza
Serial Nos. 86718731 and 86718801
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parlors are not related to Applicant’s bar services since Registrant’s pizza parlors are
related to Applicant’s restaurant services.
Applicant further contends that because the registered mark contains the word
“PIZZA,” Registrant’s services are limited to providing only pizza.11 On the contrary,
the numerous restaurant websites made of record show that with today’s dining
trends it is not uncommon for restaurants, including those featuring pizza, i.e., pizza
parlors, to offer a myriad of food options to appeal to different diets, tastes and
preferences. The evidence submitted by the Examining Attorney includes pages from
restaurant websites showing that restaurants offering pizza offer a wide array of food
and beverages, regardless of whether the word PIZZA is in the name of the
restaurant:
● City Tap House: craft beer, pizza, American pub fare (April 20, 2016 Final
Office Action pp. 33-35).

● Bergen Brick Oven Bar & Grill: salads, pizza, burgers, sandwiches, entrees,
alcoholic drinks (April 20, 2016 Final Office Action p. 36).

● Jack Ray’s Bistro and Pizzeria: We are a family run restaurant specializing in
[A]merican pub fare and pizza. Burgers, wings, subs, pizza and pastas…. (April
20, 2016 Final Office Action p. 46).

● Stuft Pizza Bar & Grill: soups, salad, pasta, pizza, burgers, dinners, seafood,
steak, cocktails, desserts (April 20, 2016 Final Office Action pp. 47-51).

● Mulligan’s Grill & Pub: offering menu featuring progressive pub fare,
specializing in brick oven pizza and beer (July 12, 2016 Request for
Reconsideration Denied p. 27).

● Wick’s Pizza Parlor: chicken wings and tenders, salads, tortillas, sandwiches,
pasta, cocktails (July 12, 2016 Request for Reconsideration Denied pp. 37-45).

11 Applicant’s Brief p. 7 (5 TTABVUE 8).
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Based on the foregoing, restaurants, including “pizza parlors,” provide a wide range
of menu items and services, including pizza and bar services, under the same mark.
Thus, consumers encountering Applicant’s bar and restaurant services and
Registrant’s pizza parlor services in connection with very similar marks are likely to
believe the services emanate from the same source.
Applicant’s offer to amend its identification of services to “bar and restaurant
services featuring American pub fare for bar patrons”12 to overcome the potential for
confusion with Registrant’s mark would not avoid the overlap with Registrant’s
services. The restaurant website evidence introduced by the Examining Attorney
demonstrates that restaurants feature bar services and American pub fare, including
pizza. See e.g., Matchbox restaurant: offering pizza, bistro menu, mini-hamburgers
and alcoholic drinks; City Tap House: offering pizza, American pub fare and craft
beer; Bentwood Tavern: offering pub fare featuring gourmet pizzas, fresh seafood,
Amish roasted chicken, steaks and chops … craft brews on tap and a wine list.13
Inasmuch as pizza is frequently offered by restaurants providing bar services and

12 See March 28, 2016 Responses to Office Action (Applicant indicated it is willing to further
narrow its identification of services to reflect this distinction by amending the services to “bar
and restaurant services featuring American pub fare” or “excluding pizza parlors.”);
Applicant’s Brief pp. 5, 8 (5 TTABVUE 6, 9) (Applicant indicated it would be willing to further
narrow its identification of services to reflect this distinction with “bar and restaurant
services featuring American pub fare for bar patrons.”). In any event, such amendment would
be futile.
13 See April 20, 2016 Final Office Actions, http:www.matchboxrestaurants.com/about/ pp.
29-32, http://webcache.googleuser content.com/search?q=cache:2zur Cnl2Q2sJ:www.city tap
houselogan.com/+&cd=1&hl=en& ct=clnk&gl=us pp. 33-35; July 12, 2016 Requests for
Reconsideration Denied http://webcache.googleusercontent.com/search?q=cache:C-9Fb-dmi
b0J:www.marinagrandresort.com/bentwood+&cd=79&hl=en&ct=clnk&gl=us p. 29.
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American pub fare, the proposed amendment would not avoid a likelihood of
confusion.
We next consider the similarity or dissimilarity of the established and likely to
continue trade channels and customers for Applicant’s and Registrant’s services.
Applicant’s unsupported argument that the parties services travel in different trade
channels because Applicant’s restaurant services providing American pub food to bar
patrons is a different trade channel from the pizza business trade channel of the cited
Registration which does not include bar patrons,14 misses the point. Applicant’s
services are “bar and restaurant services;” and “restaurant services, namely,
providing of food and beverages.” Based on its identification of services, Applicant’s
intended customers are people who eat at restaurants, including bar patrons. The
identification in the cited Registration, like Applicant’s identification, also has no
restrictions as to the intended consumers or the channels of trade for its pizza parlor
services. Absent any restrictions in an application and/or registration, as we have in
this case, the identical or highly related services are presumed to travel in the same
channels of trade to the same class of customers. In re Viterra Inc., 101 USPQ2d at

14 Applicant’s Brief pp. 7-8 (5 TTABVUE 8-9); also see, March 28, 2016 Responses to Office
Action (“Applicant’s services are described as relating to commerce directed to bar patrons.
This trade channel is different from the pizza business trade channel of the cited registered
mark which does not include bar patrons. Specifically, Applicant serves bar patrons as
referenced by news articles which emphasize the Applicant’s service as an ‘Elevated
American pub fare, classic cocktails, wine & beer served up in a chic, lofty setting.’ See
Exhibit B.”). The fact that Applicant’s services also include bar services, does not distinguish
Applicant’s restaurant services from Registrant’s pizza parlor services. It has long been a
“well-known principle that likelihood of confusion under section 2(d) of the Lanham Act . . .
must be decided in relation to the goods [or services] for which registration is sought,”
Hercules Inc. v. Nat’l Patent Dev. Corp., 524 F.2d 1227, 187 USPQ 668, 669 (CCPA 1975),
without reference to limitations not stated in the identification of goods or services.
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1908 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d
1001, 1005 (Fed. Cir. 2002)); American Lebanese Syrian Associated Charities Inc. v.
Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). To the extent
Applicant’s bar and restaurant services and Registrant’s pizza parlor services are
offered to the general consuming public, including bar patrons, the channels of trade
and classes of customers at minimum, overlap.
In view of the foregoing, the du Pont factors regarding the similarity of the
services, trade channels and customers, favor a finding of likelihood of confusion.
II. Conclusion
We have considered all of the arguments and evidence of record, including any
matters not explicitly discussed. The first term and dominant feature in both of
Applicant’s marks and the mark in the cited Registration is BLACK IRON. The
marks therefore are similar in sound, appearance, meaning and overall commercial
impression. The high degree of similarity between Applicant’s marks BLACK IRON
and BLACK IRON TAVERN, and the cited mark BLACK IRON PIZZA, taken
together with the legally identical and related nature of the services creates a
substantial likelihood that consumers may be confused as to the source of the
respective services.

Decision: The refusals to register Applicant’s marks BLACK IRON (Serial No.
86718731 as to the services recited in International Class 43), and BLACK IRON
TAVERN (Serial No. 86718801), are affirmed.
Serial Nos. 86718731 and 86718801
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Inasmuch as Application Serial No. 86718731 identifies services in International
Class 35 that were not involved in this appeal, that application shall proceed to
publication for the services in International Class 35 only.