## Facts

- A New Jersey restaurant business used the mark “WEINER KING” beginning in the early 1960s and later operated multiple locations in New Jersey.
- A North Carolina restaurant chain began using the mark “WIENER KING” in 1970 without actual or constructive knowledge of the New Jersey user.
- The North Carolina chain expanded and obtained three federal registrations in 1972 based on its use beginning in 1970.
- The New Jersey user applied in 1975 for a territorially unrestricted federal registration, asserting earlier first use.
- In a concurrent-use proceeding, the TTAB granted the New Jersey user a geographically limited registration (15-mile radius around Flemington, New Jersey) and excluded a former Long Beach Island location on abandonment grounds.
- The New Jersey user appealed, seeking a nationwide registration except for areas where the North Carolina chain had established rights before receiving notice.

## Issues

1. Whether an earlier local user is entitled to a broad, nationwide concurrent registration excluding only territories where a good-faith later user established rights before notice.
2. Whether the TTAB properly limited the applicant’s concurrent registration to the proven area of use and excluded a prior location due to abandonment.

## Decision

- The court affirmed the TTAB’s grant of only a limited concurrent registration to the New Jersey user.
- The court rejected a categorical rule that a prior user with limited geographic use is entitled to nationwide registration subject only to carve-outs for a junior registrant.
- The court approved defining the applicant’s territory by actual market penetration and reputation, not by claimed priority alone.
- The court upheld the finding that the Long Beach Island area could not be included because trademark rights there had been abandoned.

## Legal Principles

- Concurrent-use registrations under the Lanham Act are equitable, fact-dependent allocations intended to avoid likely consumer confusion.
- Priority of adoption does not, by itself, confer nationwide registration rights when the senior user’s trade and goodwill are confined to a limited area.
- Territorial trademark rights turn on actual market penetration, established reputation, and the realistic reach of the mark in commerce.
- A good-faith adopter who begins use without knowledge of another’s mark may acquire rights in its areas of use and expansion, subject to earlier local rights proven by the senior user.
- Trademark rights in a territory can be lost by abandonment, and a discontinued location cannot be used to expand the scope of a concurrent registration absent continued use or intent to resume.

## Conclusion

The court sustained a narrowly tailored concurrent-use registration that reflected the applicant’s proven local market and abandonment evidence, holding that earlier local use did not justify a nationwide registration that would substantially displace a good-faith federal registrant’s established territorial rights.


Weiner King, Inc. v. Wiener King Corp., 615 F.2d 512 (C.C.P.A. 1980)