The Trademark Trial and Appeal Board recently sustained a Section 2(d) opposition (by retail food giant Subway) to registration of the mark FLATIZZA for “pizza,” finding insufficient evidence that the Applicant, a single location restaurant in Bothell, Washington, operated in interstate commerce prior to the filing of its use-based application to register. Doctor’s Associates Inc. v. Janco, LLC, Opposition No. 91217243 (January 7, 2016) 

If you operate a single location restaurant or business and want to pursue federal trademark registration based on use in interstate commerce, here are some actions to consider based on this ruling:

• Advertise in a restaurant, business or travel directory that is circulated in interstate commerce
• Track out-of-state viewers to your website
• Track out-of-state patrons of your business (via guest register, comment cards, reviews, etc.)
• Document interactions from out-of-state residents on social media

Performing the above tasks could make all the difference should you have to prove use of your trademark in interstate commerce. In this case, Janco failed to maintain this type of evidence and thus was refused registration of its trademark.

TTAB Ruling: