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ANTHONYS PIZZA HOLDING COMPANY INC. v. ANTHONYS PIZZA AND PASTA INTERNATIONAL INC.

ANTHONY'S PIZZA HOLDING COMPANY, INC. v. ANTHONY'S PIZZA & PASTA INTERNATIONAL, INC.

UNITED STATES COURT OF APPEALS FOR THE Federal Circuit
2010 U.S. App. LEXIS 23898
November 18, 2010, Decided (unpublished opinion)

Issue: Whether ANTHONY’S COAL-FIRED PIZZA + Design would likely cause confusion with Anthony’s Pizza & Pasta International, Inc. trademark ANTHONY’S PIZZA & PASTA.

Holding: Yes, ANTHONY’S COAL-FIRED PIZZA + Design would likely cause confusion with ANTHONY’S PIZZA & PASTA.

Procedure:

This case was appealed from the United States Patent and Trademark Office, Trademark Trial and Appeal Board (“PTO Board”).

PTO Board granted the petition of Anthony's Pizza & Pasta International, Inc. ("APPI") to cancel Anthony's Pizza Holding Company, Inc.'s ("APHC's") mark ANTHONY'S COAL-FIRED PIZZA because the newer marks are likely to cause confusion.

Analysis:

The Federal Circuit applied the DuPont? factors to clarify the likelihood of consumer confusion. The marks were both for restaurant services. The marks were very similar and likely to be abbreviated the same way. The marks both used the common term “pizza.” APHC argued “Anthony’s” is a common name for pizza and Italian restaurants, that there are 15 other registrations with “Anthony’s,” that “Anthony’s” is part of 29 restaurant names, and that APPI was not the first to register “Anthony’s”. Although, APPI’s mark was a weaker, descriptive mark, the court found APPI’s mark had priority over APHC and APHC’s mark would likely cause confusion. However, the court stated APPI does not have exclusive use over “Anthony’s” or “pizza.”

Conclusion:

The Federal Circuit affirmed the PTO Board’s decision that the new mark, ANTHONY’S COAL-FIRED PIZZA + Design, would likely cause confusion with ANTHONY’S PIZZA & PASTA.


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