1113.02 Conversion of Cancellation Proceeding
In appropriate situations, a cancellation proceeding may also be terminated in favor of a concurrent use proceeding, if one party has a concurrent use application reciting the adverse party in the cancellation proceeding as an exception to its claim of exclusive use; the application is published in the Official Gazette for opposition; and no opposition is filed, or all oppositions filed are dismissed or withdrawn. [ Note 1.] See TBMP § 1112.
NOTES:
1. See Chichi’s, Inc. v. Chi-Chi’s, Inc., 222 USPQ 831, 832 (Comm’r 1984) (a decision in the cancellation proceeding adverse to respondent would not preclude respondent from filing a new application seeking concurrent registration with petitioner). See also Boi Na Braza, LLC v. Terra Sul Corp., 110 USPQ2d 1386, 1388 (TTAB 2014) (after its registration was cancelled, respondent filed a new application seeking a concurrent use registration with petitioner).