Moore, St. Louis, Mo. McKee, Des Moines, Iowa, for plaintiff. John K. Roedel, Jr. Ferrill, Jr. Plaintiff Noah, Inc. In its decision, the Board awarded the plaintiff a limited area registration for a twenty-mile area around Des Moines, Iowa. Subsequently, the defendant elected to have this case brought as a de novo proceeding in federal district court in accordance with 15 U. The question presented by this appeal is whether the defendant is entitled to a registration, covering the United States, despite the fact that the plaintiff is admittedly the senior user and was the first party to file an application for a federal registration.
This case was tried to the court sitting without a jury. The court having considered the pleadings, the testimony of the witnesses, the documents in evidence and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure.
Plaintiff, Noah's, Inc. Plaintiff was incorporated on November 4, Defendant, Nark, Inc. Charles, Missouri at South Fifth Street. On September 22, , the plaintiff filed a trademark application, serial number ,, in the United States Patent and Trademark Office, seeking a federal trademark registration for the mark "Noah's Ark" and a design for pizza; the application was later amended on November 15, for restaurant services.
A companion application, serial number , was filed by the plaintiff on August 19, for the word mark "Noah's Ark" for restaurant services. The Trademark Examiner deemed the application, serial number , registerable.
Subsequently, on March 14, the trademark was published in the Official Gazette for opposition. Thereafter, on April 11, defendant, Nark, Inc. On June 19, , the United States Patent and Trademark suspended opposition proceedings and ordered a concurrent use proceeding number between the plaintiff and defendant.
