
    405 F. 2d 1401; 160 USPQ 626
    Steer Inn Systems, Inc. v. Laughner’s Drive-In, Inc.
    (No. 8086)
    United States Court of Customs and Patent Appeals,
    February 13, 1969
    
      Arthur H. Seidel, John Justin McCarthy, Edward C. Gonda, Seidel & Gonda, attorneys of record, for appellant.
    
      Harold B. Woodard, 0. David Emhardt, Woodard, Weilcart, Hmhardt & Naugh-ton for appellee.
    [Oral argument January 9, 1969 by Mr. Seidel and Mr. Woodard]
    Before Worley, Chief Judge, Kirkpatrick, Judge, sitting by designation, Rich, Almond and Baldwin, Associate Judges.
    
   Baldwin, Judge,

delivered tbe opinion of the court:

This is an appeal from the Trademark Trial and Appeal Board decision sustaining an opposition by Laughner’s Drive-In, Inc. to Steer Inn Systems, Inc.’s application to register the service mark STEERIFF for “Restaurant Services.”

The record shows that opposer has been incorporated under the laws of Indiana since December 21, 1958, and that, under the name LAUGHFER’S STEER-IF, it operates a drive-in restaurant in Indianapolis, Indiana, specializing in hamburgers, cheeseburgers, steaks, and the like. The designation STEER-IF was first used on the construction site of LAUGHFER’S STEER-IF drive-in restaurant in February, 1959. The restaurant was opened for business on June 29, 1960, under the name LAUGHFER’S STEER-IF and has continued to operate under that name. Opposer has used the mark STEERBURGER on one of its products since June 29, 1960, and TWIN STEEE on another since July 6, 1960. Opposer’s restaurant has been advertised in newspapers and on radio and television.

The applicant owns and operates sixteen STEEE INN drive-in restaurants in New York, New Jersey, Pennsylvania, and Delaware. There is testimony that it decided, in January, 1960, to engage in the drive-in restaurant business under the name STEEE INN. The designation STEEE INN was displayed on applicant’s business office from January, 1960, to September, 1960, when the applicant was incorporated under the laws of Pennsylvania.

We agree with appellee’s synopsis of the board’s findings that:

(a) “Opposer’s record supports its use of the designation ‘STEER-IN’ in connection with the rendering of drive-in restaurant services in Indianapolis, Indiana since as early as June 29,1960. While applicant was incorporated in September 1960, the record is silent as to when applicant first rendered its drive-in services under the mark ‘Steer Inn.’ ”
(b) “In either event, we find on the record that opposer is the prior user * * *”
(c) “ ‘Steer-In’ and ‘Steer Inn’ are substantially identical designations.”
(d) “Opposer has used the name ‘Laughner’s’ in association with the designation ‘Steer-In’ on its menus, signs, and the like; but it is also apparent from the record as indicated above, that ‘Steer-In’ has on occasion been used separate and apart from ‘Laughner's’ to identify opposer’s restaurant and the food served therein.”

The record is clear that the opposer first engaged in the drive-in restaurant business as early as June 29,1960, under the name STEEE-IN and that the applicant first engaged in that business some time after opposer. Also, the opposer has testimony to the effect that it first displayed a sign showing the mark STEEE-IN on its construction site in February, 1959. The applicant has claimed first use of the mark STEEE INN from January to September, 1960; but that use was on a business office door sign, letterheads, architectural drawings, etc., all prior to applicant’s opening its first drive-in restaurant under the mark. Under these facts, we think that the opposer was the prior user for purposes of service mark registration.

The opposer urges that confusion as to source is likely because of the similarity in sound and appearance of the marks STEEE-IN and STEEE INN and because both marks are used in connection with drive-in restaurant services. The applicant argues that there is no likelihood of confusion because the design of its restaurants is distinct and distinguishable from opposer’s and because the business operations are basically different as to menu, price, service, and accommodations. Applicant also argues that opposer’s restaurant is promoted as LAUGHNER’S STEER-IN, rather than STEER-IN per se.

However, all that opposer needs to establish is likelihood of confusion, to be determined after considering the marks and the services of the respective parties. Fred W. Amend Co. v. American Character Doll Co., 42 CCPA 983, 223 F.2d 217, 106 USPQ 187 (1955).

Both parties are operating drive-in restaurants wherein hamburgers, cheeseburgers, beverages, and the like are featured. The use of the same or similar marks in connection with these services could well lead persons to mistakenly assume that there is some connection between the two operations. “STEER-IN” and “STEER INN” are substantially identical designations. Opposer has used the name “LAUGHNER’S” in association with the designation “STEER-IN” on its menus, signs, and the like; but it is also apparent from the record, as indicated above, that “STEER-IN” has on occasion been used separate and apart from “LAUGHNER’S” to identify opposer’s restaurant and the food served therein.

The board’s decision is affvrmed.

Kirkpatrick, J., took no part in the decision of this case. 
      
       Reported at 151 USPQ 650.
     
      
       Serial No. 133,422, filed December 5, 1961.
     
      
       From the record, it appears that opposer’s only use has been in intrastate commerce, not interstate. Opposer is the present owner of the following Indiana registrations: No. 6005-525 for STEER-IN, August 25, 1960 ; No. 5006-042 for TWIN STEER, February 26, 1963; No. 5005-526 for STEERBURGER, August 25, 1960; and No. 5005-524 for a composite mark consisting of a steer holding a plaque and the words LAUGHNER’S STEER-IN, August 25, 1960. No arguments concerning the intrastate-interstate dichotomy have been presented here; thus, we will not discuss the matter.
     