The Board sustained this Section 2(d) opposition to registration of the mark FLATIZZA for "pizza," finding that Applicant Janco, LLC had not used the applied-for mark in commerce prior to to the filing of its use-based application to register. Applicant operated a single restaurant in Bothell, Washington, but the Board found insufficient evidence to show that the restaurant operated in interstate commerce. Doctor’s Associates Inc. v. Janco, LLC, Opposition No. 91217243 (January 7, 2016) [not precedential].
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The Board observed that there is no particular threshold level of interstate activity required for proof of use by a single-location restaurant, but some use "in commerce" must be shown.
In this case, Applicant has not shown that its services were rendered to any out-of-state customers. Its restaurant was not shown to have been listed in any travel or restaurant guide. No advertising has been submitted. The record does not support a finding that any viewers (from out-of-state or otherwise) accessed Applicant’s website, and the business plan and menu mock-ups were for internal use only. Nor has Applicant shown that its services affected interstate commerce.
Although Bothell, Washington is near Seattle, it is not on an interstate highway: "[W]hile I-5 traverses Seattle, it is speculation to assume that out-of-state travelers would travel 3 miles off the Interstate highway to patronize Applicant’s restaurant, especially given that the route from I-5 to Bothell would require either driving the distance in a reverse direction or taking side roads."
The Board therefore found the application to be void ab initio because the mark was not in use in commerce prior to applicant Section 1(a) filing date.