NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

(Opposition No. 91171509 & 

Cancellation No. 92045956) 

ANTHONY’S PIZZA HOLDING COMPANY, INC., 

Appellant, 

v. 

ANTHONY’S PIZZA & PASTA INTERNATIONAL, 

INC., 

Appellee. 

__________________________ 

2010-1191 

__________________________ 

Appeal from the United States Patent and Trademark 

Office, Trademark Trial and Appeal Board. 

___________________________ 

Decided: November 18, 2010 

___________________________ 

STEWART J. BELLUS, Collard & Roe, P.C., of Roslyn, 

New York, for appellant. 

GARRETT M. TUTTLE, Ballard Spahr LLP, of Denver, 

Colorado, for appellee. With him on the brief was 

JEFFREY J. COWMAN. 
ANTHONY PIZZA HLDG v. ANTHONY PIZZA 2

__________________________ 

Before RADER, Chief Judge, LOURIE and MOORE, Circuit 

Judges. 

PER CURIAM. 

The Trademark Trial and Appeal Board (“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 COALFIRED PIZZA (Reg. No. 3,073,126). The Board also 

sustained APPI’s opposition to APHC’s application for the 

mark ANTHONY’S COAL-FIRED PIZZA + Design (Serial 

No. 78/547,686). Because the Board correctly discerned 

that the newer marks are likely to cause confusion, this 

court affirms. 

I. 

APPI sought to register the mark ANTHONY’S PIZZA 

& PASTA for restaurant services on December 15, 2000. 

The mark issued as Reg. No. 2,661,703 on December 17, 

2002. 

On January 14, 2005, APHC applied to register the 

mark ANTHONY’S COAL-FIRED PIZZA, in standard 

character form, for restaurant services. The mark issued 

as Reg. No. 3,073,126 on March 26, 2006. APHC also 

applied to register the mark ANTHONY’S COAL-FIRED 

PIZZA and Design, shown below, also for restaurant 

services. 
3 ANTHONY PIZZA HLDG v. ANTHONY PIZZA

The text “Coal-Fired Pizza” appears in the cross-bar of the 

letter “A.” 

APPI thereafter petitioned to cancel APHC’s registration and filed a notice of opposition against APHC’s 

application on the ground of likelihood of confusion. In 

particular, APPI alleged that through its predecessor-ininterest, licensees, and franchisees, APPI has continuously used the mark ANTHONY’S PIZZA & PASTA for 

restaurant services for more than twenty-three years and 

that APHC’s marks are likely to cause confusion with 

APPI’s mark. The proceedings were consolidated on April 

8, 2007. 

The Board issued its opinion on November 10, 2009, 

holding that APPI’s mark has priority over both of 

APHC’s marks. Anthony’s Pizza & Pasta Int’l, Inc. v. 

Anthony’s Pizza Holding Co., 95 U.S.P.Q.2d 1271, 1276 

(T.T.A.B. 2009). The Board also determined that APHC’s 

marks are likely to cause confusion with APPI’s mark. Id. 

at 1283. Accordingly, the Board sustained APPI’s opposition to APHC’s application and granted APPI’s petition to 

cancel APHC’s mark. Id. APHC appeals from these 

determinations. This court has jurisdiction under 28 

U.S.C. § 1295(a)(4)(B). 
ANTHONY PIZZA HLDG v. ANTHONY PIZZA 4

II. 

This court reviews legal conclusions of the Board 

without deference and factual findings for substantial 

evidence. In re Pacer Tech., 338 F.3d 1348, 1349 (Fed. 

Cir. 2003). Likelihood of confusion constitutes a legal 

determination based on underlying findings of fact. In re 

Chatam Int’l, Inc., 380 F.3d 1340, 1342 (Fed. Cir. 2004). 

This court assesses a likelihood of confusion based on the 

factors set forth in In re E.I. DuPont de Nemours & Co., 

476 F.2d 1357, 1361 (CCPA 1973). “The likelihood of 

confusion analysis considers all DuPont factors for which 

there is record evidence but ‘may focus . . . on dispositive 

factors, such as similarity of the marks and relatedness of 

the goods.’” Herbko Int’l, Inc. v. Kappa Books, Inc., 308 

F.3d 1156, 1164 (Fed. Cir. 2002) (quoting Han Beauty, 

Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1336 (Fed. Cir. 

2001)). 

On appeal, APHC challenges the Board’s conclusion 

on likelihood of confusion, arguing that the Board erred 

by ignoring its finding that “Anthony’s” is a commonly 

used name for pizza and Italian restaurants. APHC 

stresses that (1) APPI is not the first Italian restaurant to 

use the name Anthony’s; (2) the PTO has issued fifteen 

third-party registrations incorporating the name “Anthony’s” for restaurant or food products; (3) “Anthony’s” 

had been adopted, in whole or in part, as the name of at 

least twenty-nine different restaurants; and (4) a prior 

registration for ANTHONY’S THE WORLD’S GREATEST 

PIZZA pre-dates APPI’s application. 

This court must assess these contentions, however, 

through the lens of the other DuPont factors, as these 

clarify the likelihood of consumer confusion between 

APPI’s prior mark and APHC’s marks. The first two 

DuPont factors are “[t]he similarity or dissimilarity of the 
5 ANTHONY PIZZA HLDG v. ANTHONY PIZZA

marks in their entireties as to appearance, sound, connotation and commercial impression” and “[t]he similarity or 

dissimilarity and nature of the goods or services as described in an application or registration or in connection 

with which a prior mark is in use.” 476 F.2d at 1361. 

Notably, the Board found that APPI’s and APHC’s “services are legally identical.” 95 U.S.P.Q.2d at 1278. 

“When marks would appear on virtually identical goods or 

services, the degree of similarity necessary to support a 

conclusion of likely confusion declines.” Century 21 Real 

Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 

(Fed. Cir. 1992) (citations omitted). 

With respect to the similarity of the marks, the Board 

found that ANTHONY’S is the dominant element of 

APPI’s mark and both of APHC’s marks. 95 U.S.P.Q.2d 

at 1279-80. Indeed, the record shows that consumers 

were likely to shorten or abbreviate both ANTHONY’S 

PIZZA & PASTA and ANTHONY’S COAL-FIRED PIZZA 

to “Anthony’s” or “Anthony’s Pizza.” Each of the marks 

also includes weaker descriptive terms: “Pizza & Pasta” 

or “Coal-Fired Pizza.” With respect to APHC’s composite 

mark, the design features comprise the letter “A” in 

“Anthony’s” and the primary commercial impression 

engendered thereby is the name “Anthony’s.” The phrase 

“COAL-FIRED PIZZA” and the fire design are incorporated into the “A,” are smaller than the word 

ANTHONY’S, and have little or no source-indicating 

significance because they describe goods and the way they 

are made. See In re Nat’l Data Corp. 753 F.2d 1056, 1058 

(Fed. Cir. 1985) (“That a particular feature is descriptive 

or generic with respect to the involved goods or services is 

one commonly accepted rationale for giving less weight to 

a portion of a mark.”). Thus, substantial evidence supports the Board’s finding that the marks are similar. 
ANTHONY PIZZA HLDG v. ANTHONY PIZZA 6

This court does not perceive that the Board violated 

the anti-dissection rule by focusing on the ANTHONY’S 

element, particularly as that term is used by other sellers 

in the market. The Board properly analyzed the marks in 

their entireties, while appropriately focusing on the 

dominant element. “[T]here is nothing improper in stating that, for rational reasons, more or less weight has 

been given to a particular feature of a mark, provided the 

ultimate conclusion rests on consideration of the marks in 

their entireties. Indeed, this type of analysis appears to 

be unavoidable.” Id. (footnote omitted). 

Other DuPont factors reinforce the likelihood of confusion between the marks. For example, APPI offered 

evidence that consumers of pizza and related items at 

APPI’s and APHC’s price points are making an “impulse” 

decision. Because such products are generally purchased 

without care, consumers devote limited attention to their 

purchase and thus are more susceptible to confusion. See 

Dupont, 476 F.2d at 1361. 

This court also considered other cases with similar 

elements that did not result in a likelihood of confusion. 

Although those cases can give some guidance, the determination of likelihood of confusion is specific to the facts 

and circumstances of each case. Dupont, 476 F.2d at 

1361. Moreover, this court did not perceive that those 

other cases required a different result than that reached 

by the Board. For example, in In re Broadway Chicken, 

Inc., 38 U.S.P.Q.2d 1559 (T.T.A.B. 1996), which APHC 

characterizes as particularly “on point,” the Board found 

no likelihood of confusion between applicant’s mark 

BROADWAY CHICKEN and preexisting registrations for 

BROADWAY PIZZA and BROADWAY BAR & PIZZA. 

The Board characterized Broadway Chicken as a “very 

close case,” but found that the marks were sufficiently 

distinguished by the terms “Chicken” and “Pizza” to 
7 ANTHONY PIZZA HLDG v. ANTHONY PIZZA

permit consumers to recognize one restaurant as specializing in chicken and the other specializing in pizza. Id. at 

1566. In contrast, the common term “PIZZA” in the 

marks in this case connotes restaurants that specialize in 

similar services. 

This court also considered the record evidence that 

APPI may not have adequately policed its mark. The 

record, however, did not disclose any evidence of a mark 

confusingly similar to APPI’s mark either registered with 

the PTO or used in an overlapping geographic area. See 

Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 

364 (2d Cir. 1959). Moreover, the record shows that APPI 

sought to minimize potential confusion with a previously 

registered third-party mark through its participation in a 

co-existence agreement that sought to establish distinct 

channels of trade. APPI also established a watch service 

for potentially similar marks—which led to this proceeding. Thus, the record does not show a reticence to protect 

the mark. 

This court is also aware that the founder and current 

owner of APHC is named Anthony, while no one associated with APPI has the name “Anthony.” But APHC’s 

good faith in adopting its marks does not change the 

likelihood of confusion among members of the public. See 

Bourjois, Inc. v. Cheatham Chem. Co., 47 F.2d 812, 814 

(CCPA 1931). Indeed, a junior user’s right to use his 

name “must give way to the more compelling public and 

private interests involved in avoiding likelihood of confusion . . . .” Ford Motor Co. v. Ford, 462 F.2d 1405, 1407 

(CCPA 1972). Notably, the cases relied on by APHC 

involve marks incorporating a person’s full name or last 

name, while the instant marks do not. See, e.g., Brennan’s, Inc. v. Brennan’s Restaurant, L.L.C., 360 F.3d 125, 

128, 135 (2d Cir. 2004) (no likelihood of confusion between 

TERRACE BRENNAN’S and BRENNAN’S). 
ANTHONY PIZZA HLDG v. ANTHONY PIZZA 8

The Board also considered properly APPI’s coexistence agreement with the owner of the mark 

ANTHONY’S PIZZA THE WORLD’S GREATEST. This 

court has specifically endorsed coexistence agreements 

that accept the parties’ reasonable appraisal of marketplace conditions. Bongrain Int’l (American) Corp. v. 

Delice de France Inc., 811 F.2d 1479, 1484-85 (Fed. Cir. 

1987). APPI’s coexistence agreement limited the use of 

ANTHONY’S PIZZA THE WORLD’S GREATEST to 

military bases where active duty military personnel are 

present and assigned to duty, and prevented APPI from 

opening restaurants on such installations. As such, it 

reflected the parties’ agreement to avoid confusion by 

limiting their operations to distinct channels of trade. 

That subsequent evidence revealed actual confusion 

between these marks highlights the challenge in distinguishing marks containing both the words “Anthony’s” 

and “Pizza.” 

Finally, the Board did not grant APPI exclusive rights 

to the term “Anthony’s.” Nor did it grant APPI exclusive 

right to the terms “Anthony’s” and “Pizza.” The Board 

merely found that APPI’s relatively weak mark bars the 

registration of marks “as to which the resemblance to 

[APPI’s mark] is striking enough to cause one seeing it to 

assume that there is some connection, association, or 

sponsorship between the two.” 95 U.S.P.Q.2d at 1278 

(citation omitted). That is precisely consistent with the 

intent of the Lanham Act, which prevents registration of 

marks likely to cause confusion. 

Accordingly, this court affirms. 

AFFIRMED 
9 ANTHONY PIZZA HLDG v. ANTHONY PIZZA

COSTS 

No costs.