The Board affirmed a Section 2(d) refusal to register the mark LEFTY’S for “restaurant and bar services,” finding it likely to cause confusion with the identical mark registered for “bar and restaurant services.” Applicant Bovis Foods pointed to its use of the LEFTY’S mark for restaurant and bar services for “nearly 60 years” without confusion, and to its registrations for LEFTY O’DOUL’S for restaurant and bar services and for hot dogs, and mustard, and LEFTY's for non-alcoholic cocktail mixes, and energy drinks. The Board let those wild pitches go by. In re Bovis Foods, LLC., Serial No. 86286415 (November 18, 2016) [not precedential].

The Board pointed out that priority is not an issue in an ex parte appeal of a Section 2(d) refusal. Applicant could have petitioned to cancel the cited registration, or could have sought a concurrent use registration, but it did not do so.

Co-existence of the involved marks is relevant only if the mark were in use in the same channels of trade, and if there have been meaningful opportunities for confusion to occur.. Here, registrant’s restaurant is presumably in Maryland while applicant’s is in San Francisco. There was no evidence that customers have traveled from Maryland to San Francisco, or vice versa. [Have the Orioles never played the Giants? - ed.].

Even assuming Applicant’s restaurant is known to those who have not traveled to San Francisco or eaten there, due to its length of use for restaurant services and certain goods and its connection with the baseball player Lefty O’Doul, the fact that Applicant is not aware of actual confusion does not mean there has not been such confusion, nor does it foreclose the likelihood of confusion. The lack of evidence of actual confusion carries little weight in the ex parte context. J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965). The issue before the Board is, of course, likelihood of confusion, not actual confusion. Moreover, the registrant has no opportunity to be heard on the issue of actual confusion in an ex parte appeal.

With regard to the crowded-field argument, “[e]ven if there were sufficient evidence to find the field of restaurants that incorporate the term LEFTY’S in their marks crowded, and that the use and registration of LEFTY’S for goods adds to the crowded field, there must be some distinguishing element in the applied-for and registered marks or the goods and services by which consumers may distinguish them. Here, everything is identical.”

The Board therefore affirmed the refusal.