Penguin Books Ltd.v.Rainer Eberhard dba Penguin Computer Consultants

Trademark Trial and Appeal Board

Apr 24, 1998

OPP (T.T.A.B. Apr. 24, 1998)

Hearing: Paper No. 75
March 19, 1997 RLS/JS
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB APRIL 24, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Penguin Books Ltd.
v.
Rainer Eberhard dba
Penguin Computer Consultants
Opposition No. 82,098
to application Serial No. 73/807,685
filed on June 19, 1989
_____
Rainer Eberhard dba
Penguin Computer Consultants
v.
Penguin Books Ltd.
Cancellation No. 19,780
_____
Arne M. Olson of Olson & Hierl for Penguin Books Ltd.
James E. Eakin of Graham & James LLP for Rainer Eberhard dba
Penguin Computer Consultants.
______
Before Simms, Cissel and Hanak, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Penguin Books Ltd. (opposer or “Penguin”), a
corporation of the United Kingdom, has opposed the
Opposition No. 82,098
Cancellation No. 19,780
2
application of Rainer Eberhard doing business as Penguin
Computer Consultants (applicant or “Eberhard”) to register
the mark shown below
for computer programs and instruction manuals therefor sold
together as a unit for maintenance management.1 In the
notice of opposition, opposer asserts that for more than 40
years it has sold books, printed publications, computer
programs, audiotapes, videotapes and related material under
the marks PENGUIN and a penguin design; that it owns
registrations for these marks for books, prints and
publications; and that applicant’s mark so resembles
opposer’s previously used and registered marks as to be
likely to cause confusion, to cause mistake or to deceive.
In his answer, applicant has admitted that opposer adopted
its marks for books prior to applicant’s use, but denied the
other essentials allegations of the notice of opposition.
Opposition No. 82,098
Cancellation No. 19,780
3
After the opposition proceeding was commenced,
applicant filed a petition to cancel one of opposer’s
unpleaded registrations (Registration No. 1,448,207, issued
July 21, 1987) for the mark PENGUIN for pre-recorded
computer programs. In the petition for cancellation,
applicant asserts that since 1983 he has offered under the
mark PENGUIN and design a maintenance and inspection
software program suitable for entities with a large
inventory of equipment; that opposer has asserted four
registrations against applicant in Opposition No. 82,098
(one of these has now been cancelled under Section 8 of the
Trademark Act, 15 USC §1058), the ’207 registration being
asserted against applicant in opposer’s motion for summary
judgment; and that the Board allowed applicant to seek
cancellation of the registration herein sought to be
cancelled.2 In the petition for cancellation, applicant

1 Application Serial No. 73/807,685, filed June 19, 1989,
claiming use in commerce since November 1, 1983.
2 In the March 19, 1991 decision on opposer’s motion for summary
judgment, the Board determined that there were no genuine issues
as to opposer’s standing or its priority. We also held that the
marks of the parties convey similar commercial impressions,
applicant’s design mark being perceived as a penguin, a pictorial
representation of opposer’s word mark PENGUIN. We also held that
applicant’s computer programs would be encompassed within the
broad description in opposer’s registration. The Board allowed
applicant time in which to submit a counterclaim in which to seek
a restriction of opposer’s Registration No. 1,448,207, and
applicant did so, by separate petition for cancellation.
Accordingly, the Board denied opposer’s motion for summary
judgment and consolidated the opposition and the separate
cancellation proceeding brought by applicant.
Opposition No. 82,098
Cancellation No. 19,780
4
charges that opposer’s registered mark has been “abandoned”
because the registered mark has never been used in
connection with computer programs and manuals for
maintenance management (applicant’s goods). In this regard,
applicant asserts that the description of goods in opposer’s
registration is overly broad and opposer’s specific computer
programs are not enumerated as now required by Office
policy. Applicant asserts that if opposer is permitted to
retain its broad registration, then applicant will be barred
from obtaining a registration of his mark for his
specifically identified computer programs for maintenance
management. Applicant, therefore, seeks partial
cancellation of opposer’s registration. See Section 18 of
the Trademark Act, 15 USC §1068. Opposer, in an answer to
the petition for partial cancellation, denied the essential
allegations of the petition but admitted that its
registration will bar registration to applicant.
The opposition and cancellation proceedings were
consolidated by the Board on October 2, 1991.
The Record
This record consists of testimony (and exhibits)
submitted by both parties; discovery responses, including
portions of a discovery deposition, status and title copies
of four registrations, copies of portions of printed
Opposition No. 82,098
Cancellation No. 19,780
5
publications, and copies of electronic versions of articles
from printed publications, all relied upon by opposer’s
notices of reliance; portions of telephone directories,
portions of a discovery deposition (as well as exhibits)
submitted by applicant; and the application and registration
files. The parties have submitted briefs and an oral
hearing was held.
Opposer’s registrations include the word mark PENGUIN
as well as the design (shown below)
for books.3 Opposer, as indicated, also owns a registration
covering the mark PENGUIN for pre-recorded computer
programs, the registration which applicant is seeking to
cancel in part or restrict.

3 Registration No. 561,636, issued July 15, 1952, twice renewed;
and Registration No. 557,417, issued April 8, 1952, twice
renewed.
Opposition No. 82,098
Cancellation No. 19,780
6
According to Mr. Michael Jacobs, a senior vice
president of Penguin Books USA, a related company to
opposer, over 4,000 different books are available under the
PENGUIN mark, with 1992 sales under that mark of $38 million
and advertising of $2 million. According to Mr. Jacobs’
testimony deposition, 10, “the Penguin trademark is the most
recognizable book trademark in trade publishing.” Thousands
of other titles under other marks or “imprints” of opposer
refer to “Penguin Books” on the copyright notice page. He
also testified that Penguin Books USA has been selling books
about computers since around 1970 (Exhibit 15, p. 44, being
the latest listing), that it has licensed a number of books
to be published in electronic format, that opposer itself
has in the past sold software based on its books, such as by
placing the works of Shakespeare on software (1984 through
1985 or 1986), that some bookstores to which it sells books
also sell software (Waldenbooks being the largest), that
these bookstores sell management and planning software
(Jacobs, 27) and that Penguin Books USA also sells books to
computer stores. Penguin Books USA advertises in
newspapers, magazines, on the radio and by way of point-of-
sale materials. The penguin design also appears on its
point-of-sale materials.
Opposition No. 82,098
Cancellation No. 19,780
7
When asked about Penguin Books USA entering into the
software field, Mr. Jacobs stated, at 53:
A I think it’s an area that we could
greatly expand our business into if we
did it correctly.
Q Why do you say that?
A Because, as I said before, I think the
technology is now right for us to expand; I
think the electronic book and the licensing
that we are doing in that area is one good
example of that. And we feel that the cross-
over between book purchasers and software
purchasers is a natural crossover, and they
are much the same person in many instances.
He also testified, at 79, that there “is certainly a
strategy as to how we will move forward into electronic
publishing.”
Opposer’s director of electronic publishing (formerly
the assistant director of subsidiary rights), Ms Julie
Hansen, testified that opposer has been licensing the
electronic publication of its books to software publishers
since 1992, and that 20 books have now been licensed. When
asked about the status of electronic publishing, she stated
that this area was one of rapid growth.
A Within the past two years or maybe even
year and a half, as it started really get-
ting exciting. As a result, we have seen a
very big growth in interest from electronic
publishers in our books and interest among
the staff is growing, too...
…Penguin is becoming more involved in
electronic publishing. Our licensing is
the start. We are examining joint rela-
Opposition No. 82,098
Cancellation No. 19,780
8
tionships with software publishers. We are
preparing and using digital means of pro-
duction, including for the design of our
covers. So that when we choose to publish
ourselves in electronic media, we have the
resources ready to do that.
Hansen, 8, 13-14. Opposer has arrangements with such
software companies as Microsoft Corporation, Apple, Voyager
and Compton’s New Media.
The record also includes the testimony of Mr. Robert
Stein, an owner of The Voyager Company, an electronic
publisher in such forms as videodisks, interactive computer
software, floppy disks and CD-ROMs. He has been in the
publishing business for 20 years. He also testified that
Penguin Books is one of the best known names in the
publishing industry (Stein, 11)4 and that his company has
begun to license books from opposer to publish in electronic
book format. The packaging indicates that these editions
are done by arrangement with a division of opposer. When
asked if he thought it was likely that opposer would get
into “software,” he stated “inevitable” and that it would be
a “natural expansion.” (Stein, 16, 17)
A The world of publishing is moving very
quickly to work in electronic media, and
there is no major publishing company in the
world that isn’t getting into it.

4 See also Hansen, 16 (“It’s probably one of the most widely
recognized book publishing logos.”)
Opposition No. 82,098
Cancellation No. 19,780
9
He also offered the opinion that he thought there would be
confusion as to source when “people” saw applicant’s goods
under the mark.
A Well, to start with, the name Penguin is
known throughout the world as a publisher and
the natural thought would be, if something is
published in the name of Penguin, then it
comes from Penguin Books; the second being the
logo of the penguin is universally recognized
as being Penguin Books.
I don’t think there would be any doubt in
somebody’s mind.
Stein, 18. See also Mellin, 16, and Jacobs, 55-56, where
the witnesses also opine that confusion would be likely.
Mr. Michael Mellin, publisher of the Reference and
Electronic Publishing division of Random House, testified
that Random House and other publishers are involved in
electronic publishing either directly or through license,
including the best-selling electronic encyclopedia and
dictionary. Most of the activity in the area of electronic
publishing has been as a result of licensing to software
publishers for electronic publication. Mellin, 31-32. Mr.
Mellin has spoken on the topic of how electronic publishing
is transforming the publishing industry. He testified that
Penguin Books is “[a]mong the best-known names in book
publishing.” Mellin, 13.
With the printed publications and electronic versions
thereof, opposer has shown that advertisements for
Opposition No. 82,098
Cancellation No. 19,780
10
applicant’s goods as well as reviews of books published by
opposer have appeared in some of the same computer or trade
magazines. This material also shows that some of the novels
which opposer publishes are used as themes for three-
dimensional computer games and that books published by
opposer will be available from on-line computer services.
By this information, opposer is attempting to show a
connection between books and software, the expansion of its
business from publishing to software and that books are
available in a software format.
This record, including discovery relied upon by
opposer, shows that applicant’s computer software bearing
the mark sought to be registered has been sold since at
least 1983. The software, at least the KING PENGUIN
version, is designed for inventory management of smaller
companies. Applicant’s program creates schedules of work to
be done to a plant facility and to equipment. Applicant’s
customers include the maintenance departments and managers
as well as purchasing agents of smaller manufacturing
companies, hospitals, school districts and utilities.
Applicant promotes his goods through computer magazines and
trade journals and at trade shows. The programs are not
normally sold through retail stores. Sales in recent years
have been around $100,000 with advertising expenses around
Opposition No. 82,098
Cancellation No. 19,780
11
$40,000. See applicant’s Supplemental Response to opposer’s
Interrogatory No. 14. Total sales have exceeded $700,000,
and total advertising expenses are greater than $300,000.
Eberhard test. dep., 23, 25.
Mr. Eberhard was aware of opposer and novels published
by it and has conceded that opposer’s marks are “very well”
known. Eberhard disc. dep., 72. Mr. Eberhard has also
acknowledged that some companies publish books and manuals
as well as software. According to Mr. Eberhard, there have
been no instances of actual confusion and not even any
inquiries made with respect to the relationship or the
source of applicant’s goods vis-à-vis opposer and opposer’s
goods (Eberhard disc. dep., 100).
The directory listings from 19 telephone directories
have been offered by applicant to show third-party “use” of
the Penguin name by other companies.5

5 Opposer has objected to this evidence on the ground that it
does not show actual use of this name by others. Opposer is, of
course, correct that these white pages listings of companies with
the word Penguin in their names do not show actual use in the
marketplace of these trade names and company names. These
listing are of limited probative value because they do not
demonstrate that these businesses actually exist or that the
public is aware of them. See Helene Curtis Industries Inc. v.
Suave Shoe Corp., 13 USPQ2d 1618, 1622 (TTAB 1989) and In re Hub
Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983). However, they
are admitted for what they show on their face. We should note,
however, that the use of the name “Penguin” in connection with
various companies whose businesses are as diverse as a laundry
business, a yogurt retailer, a café, a heating and air
conditioning company, a company that sells pools and spas, and a
Opposition No. 82,098
Cancellation No. 19,780
12
Finally, applicant relies upon the testimony of its
expert, Dr. Peter Goldie, the president of a CD-ROM
publisher who is an expert in the field of electronic
publishing on CD-ROM. Among other things, he testified that
opposer is not in the computer software field and does not
perform electronic publishing on CD-ROM.
Opposer has objected to this testimony on two bases-—
insufficient notice as well as the fact that Dr. Goldie was
not identified as an expert in any supplemental response to
opposer’s interrogatories. Opposer asserts that it only
knew about applicant’s expert witness the day before the
deposition was taken despite an outstanding interrogatory
request that such information be provided under Fed. R. Civ.
P. 26(b)(4), and despite applicant’s representation that he
would provide a supplemental response when a decision was
made with respect to whether applicant was going to call an
expert witness. Opposer also objected on this basis at the
deposition. In response, applicant maintains that he gave
opposer notice as early as possible. Moreover, during the
deposition, applicant’s attorney agreed to give opposer
access to the witness to remedy any potential problem,
including allowing opposer another opportunity in which to
cross-examine applicant’s expert witness.

sporting goods company, do not show that opposer’s registered
Opposition No. 82,098
Cancellation No. 19,780
13
Under the circumstances, we exercise our discretion to
consider this testimony. In view of the nature of the
testimony presented, we do not believe that the relatively
short notice was prejudicial to opposer. Also, the fact
that applicant offered to make this witness available at a
future date lessened any possible prejudice to opposer.
Arguments of the Parties
Opposer argues that some of the issues herein have
already been determined by the Board pursuant to opposer’s
motion for summary judgment. These include opposer’s
standing, opposer’s priority and the similarity of the
marks. With respect to opposer’s computer programs and
applicant’s computer programs, opposer maintains that the
goods are related in that both parties publish software.
Opposer also argues that the evidence reveals that applicant
has sold some of its computer programs through retailers
such as Computerland, and that both bookstores and computer
stores sell books as well as software. Also, opposer argues
that the evidence shows that applicant’s advertisements and
reviews of opposer’s computer-related books have appeared in
some of the same computer magazines.
Opposer argues that PENGUIN is the most famous mark in
publishing and that, in view of the fame of opposer’s mark,

mark PENGUIN is weak for its goods.
Opposition No. 82,098
Cancellation No. 19,780
14
likelihood of confusion is greater because of the propensity
of consumers to associate a new mark with opposer’s familiar
mark. Opposer also maintains that applicant’s customers are
not computer savvy. In this regard, opposer points to Mr.
Eberhard’s testimony, at 77, where he stated that his
customers “basically fire up the system, run the system,
turn it off and go home. They don’t know much about what’s
going on.” Opposer argues that any doubt as to the issue of
the likelihood of confusion should be resolved in favor of
it as the prior registrant. In conclusion, opposer argues
that someone seeing applicant’s penguin design mark on
applicant’s computer programs would assume that that
software is sponsored or approved by opposer.
Aside from arguing that opposer’s penguin design mark
and applicant’s mark differ in various ways, applicant
argues that, according to this record, opposer sells only
eight computer-related books and that any use of opposer’s
marks relating to “computer programs” has been, as noted
above, in connection with a Shakespeare study series
produced by opposer. Subsequently, opposer licensed rights
to the electronic publication of some of opposer’s products,
but the name “Penguin” only appeared on the copyright notice
pages of such electronic versions. Essentially, it is
applicant’s position that there has been and will be no
Opposition No. 82,098
Cancellation No. 19,780
15
likelihood of confusion when opposer’s marks are used in
connection with its goods, which are sold at retail, and
applicant’s customized DOS-based software designed for
specialized applications and costing between $1,500 and
$5,000.6 Further, applicant argues that his goods are
rarely sold through retail computer stores, where the
programs are only ordered on behalf of a particular
customer, but are primarily sold by means of direct mail
orders or by phone or fax. Also, applicant contends that,
while his goods are accessible to computer novices, his
computer software is expensive and not purchased on impulse.
His purchasers are, by and large, engineers and maintenance
managers.
Applicant also argues that there have been no instances
of actual confusion despite ten years’ contemporaneous use.
Also, applicant points out that any fame residing in the
mark PENGUIN is for books and books alone, and not with
respect to computer-related books or computer programs.
With respect to his counterclaim to restrict opposer’s
registration ’207, applicant argues that this record reveals
use by opposer in connection with “computer programs” only
on a few Shakespeare study tapes sold in the mid-1980s

6 The record does reflect, as applicant acknowledges, that it
sells a “disabled” kit for evaluation purposes priced around
$150.
Opposition No. 82,098
Cancellation No. 19,780
16
usable on now-obsolete personal computers. Accordingly,
while in his counterclaim applicant sought only to eliminate
applicant’s specific goods from opposer’s registration, the
facts later developed during this proceeding are argued to
warrant a different limitation - - “computer programs
consisting of literature and educational databases for
retrieval on electronic media.” Applicant’s brief, 17. In
the alternative, applicant argues for cancellation of the
registration in its entirety for non-use constituting
abandonment. In this regard, it is applicant’s position
that opposer’s lack of use on computer programs since 1985
or 1986 should lead to the entire cancellation of opposer’s
registration. Further, opposer’s recent activities in the
field of electronic publishing do not rise to the level of
“intent to resume,” according to applicant. Applicant also
maintains that he has priority of use because he began using
his design mark in early 1983, before opposer’s first use in
connection with its “computer programs.”
In a reply, opposer argues that total cancellation of
its ’207 registration is inappropriate and untimely, as is
applicant’s new proposed restriction. In this regard,
opposer argues that applicant never raised these issues
until his brief on the case. Opposer argues that it
proceeded to trial on the basis of the proposed restriction
Opposition No. 82,098
Cancellation No. 19,780
17
in applicant’s original petition or counterclaim for
cancellation. If opposer had known of this issue, opposer
argues, its trial testimony and evidence would have included
evidence of its continuing intent to publish software under
its marks. Opposer argues that it had no intention to
abandon the registration covering computer programs. With
respect to the issue of priority, opposer argues that, in
view of its registrations, this is not an issue that was
tried by the parties. Also, opposer points out that the
Board, in ruling upon opposer’s motion for summary judgment,
noted that priority was not an issue herein.
Opinion
First, with respect to applicant’s arguments concerning
his priority of use of the mark for computer programs, a
registration of a subsequent-user opposer is sufficient to
deny registration to applicant if there is likelihood of
confusion. King Candy Company v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974). While
there is a pending petition or counterclaim to restrict the
scope of goods in that registration, there is no pleaded
collateral attack on the validity of that registration.
Moreover, opposer is the owner of other unchallenged
subsisting registrations.
Opposition No. 82,098
Cancellation No. 19,780
18
Turning then to the issue of likelihood of confusion,
we believe that there is a striking similarity between
opposer’s registered design mark for books and applicant’s
mark. With respect to opposer’s word mark PENGUIN, we
believe what the Board stated in reviewing opposer’s motion
for summary judgment is noteworthy.
There is no genuine issue that opposer’s
Registration No. 1,448,207 for pre-recorded
computer programs is for the word mark PENGUIN.
Nor is there any genuine issue that applicant’s
mark comprises a penguin design. Applicant refers
to his mark as a penguin design throughout his
papers, and has stated in his affidavit that the
mark is normally used with the phrase “Penguin
Computer Consultants.” As a result, the design
would be perceived as a penguin, and as such is
the pictorial representation of opposer’s word
mark. Accordingly, we find that both marks convey
the same commercial impression.
Concerning the similarity of the goods of the parties,
we hold that opposer’s registration covering a very similar
design mark for books precludes registration to applicant
for his mark for computer programs for maintenance
management. Opposer’s registration is broad enough to
encompass books of all types, including books on the very
subject matter of maintenance management. Aside from this
fact, however, there is testimony and evidence that opposer
has sold under its registered penguin design mark (as well
as under the registered mark PENGUIN) a number of “computer
books” or books on various topics dealing with computers.
Opposition No. 82,098
Cancellation No. 19,780
19
Suffice it to say that we believe that purchasers familiar
with opposer’s registered mark used in connection with these
kinds of books who then encounter applicant’s almost
identical mark used in connection with a specific computer
program are likely to believe that these goods come from the
same source. In this regard, there is testimony of record
that computer programs are sold in bookstores as well as
computer stores and that books are also sold in computer
stores. While applicant has vociferously argued that his
computer programs are sold by mail order or over the phone
or by fax rather than in retail stores, there is testimony
that at least some of applicant’s goods have been ordered by
retail stores for customers. More important, however,
applicant’s application is unrestricted as to the channels
of trade for his computer programs for maintenance
management, and we believe that the types of computer
programs in applicant’s application may well be sold in
computer stores.7
With respect to applicant’s attempt to restrict
opposer’s registration to computer programs except computer
programs for maintenance management, we agree with opposer
that such a proposed restriction would not serve to avoid

7 In June 1993, the Board denied as untimely applicant’s proposed
amendment to the identification of goods to indicate that his
computer programs are not for “off-the-shelf” retail sales.
Opposition No. 82,098
Cancellation No. 19,780
20
likelihood of confusion and must be rejected. See Eurostar
Inc. v. “Euro-Star” Reitmoden GmbH & Co. KG, 34 USPQ2d 1266
(TTAB 1994). In this regard, we agree with opposer that
applicant is trying to carve out a narrow exception for his
goods only and that, under applicant’s proposed restriction,
opposer’s registration would still cover computer programs
for use by small businesses in connection with all other
aspects of their businesses except maintenance management.
Such a proposed restriction does not delineate any different
users or different channels of trade and does not serve to
avoid likelihood of confusion.
Moreover, applicant’s requests in his reply brief for
either total cancellation of opposer’s registration on the
ground of abandonment or the new restriction, also proposed
therein for the first time, for programs including
literature and educational databases, are untimely. It is
clear that opposer went to trial on the basis of the
proposed restriction set forth in applicant’s petition or
counterclaim and we believe that, as opposer argues, it
would be unfair to it to now determine the propriety of
another proposed restriction, let alone total cancellation,
not asserted in applicant’s pleading. As opposer maintains,
evidence of its use of the mark in connection with goods
other than those now sought to be placed in opposer’s
Opposition No. 82,098
Cancellation No. 19,780
21
registration could have been elicited at trial if opposer
had been placed upon notice of this issue. See Personnel
Data Systems Inc. v. Parameter Driven Software, Inc., 20
USPQ2d 1863 (TTAB 1991) and Flow Technology, Inc. v.
Picciano, 18 USPQ2d 1970 (TTAB 1990). If, after applicant’s
initial counterclaim, he learned through discovery or
otherwise of information which would have served as the
basis for a further proposed restriction (or for
cancellation), he should have promptly moved to amend his
counterclaim and to thereby place opposer upon notice.
While applicant has argued that his computer programs
are relatively costly and designed for engineers and
maintenance managers, such conditions and limitations are
also not reflected in the description of goods in
applicant’s application and must be ignored. Canadian
Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d
1490, 1 USPQ2d 1813, 1816 (Fed. Cir. 1987). Moreover, as we
must view this case, opposer’s “computer programs” may be
sold in the same channels of trade as applicant’s computer
programs and instruction manuals for maintenance management.
We also find that this record demonstrates the renown
of opposer’s mark PENGUIN, at least with respect to books.
This factor, therefore, has been considered in the
determination of likelihood of confusion with respect to
Opposition No. 82,098
Cancellation No. 19,780
22
opposer’s registrations for books. While we have considered
the evidence of record with respect to third-party “uses” of
the name “Penguin”, we believe that this evidence is of
relatively little probative value because it does not
detract from the renown of opposer’s mark PENGUIN for books.
We have also considered the fact that there have been
no instances of actual confusion despite approximately ten
years’ contemporaneous use of the respective marks, but we
attribute such lack of actual confusion to such facts as
applicant’s actual manner of distribution and sale, which is
irrelevant in the absence of a meaningful restriction in his
application. We also realize that evidence of actual
confusion is difficult to obtain.8

8 Except as otherwise indicated, we have considered all of the
evidence submitted by the parties.
Opposition No. 82,098
Cancellation No. 19,780
23
Decision: The opposition is sustained and registration
to applicant is refused. Applicant’s counterclaim for
partial cancellation is dismissed.
R. L. Simms
R. F. Cissel
E. W. Hanak
Administrative
Trademark Judges,
Trademark Trial and
Appeal Board