The opinion
Woeley, Chief Judge,
dissenting:
Since I am convinced the Trademark Trial and Appeal Board erred in granting the motion to dismiss Seven-Up’s petition for cancellation on the ground of res judicata, I respectfully dissent from the result reached by the majority.
The majority states that the question here is whether the issue of cancellation of Bubble Up’s registrations was in issue in the Illinois suit and apparently finds that it was. However, as I read the record, the specific relief asked in that suit relates to Trademark Infringement, Unfair Competition and Trademark Dilution, but not “the identical relief here sought, to wit: cancellation of Registrations Nos. 141,244 and 354,840.”
This court has stated many times that there is a distinction between the right to use a mark and the right to register it. Alumatone Corporation v. Vita-Var Corporation, 37 CCPA 1151, 183 F. 2d 612 86 USPQ 359 ; Salem Commodities, Inc. v. Miami Margarine Co., 44 CCPA 932, 244 F. 2d 729 , 114 USPQ 124 ; Alfred Dunhill of London Inc. v. Dunhill Tailored Clothes, Inc., 49 CCPA 730, 293 F. 2d 685 , 130 USPQ 412 . The present petition having been filed three days before the Illinois suit, the matter of Bubble Up’s right to its *1019 registration lias been in issue on the basis of the petition continuously through the entire course of the suit. Affirmance of the board’s dismissal of the petition on a motion to dismiss (in practical effect, a motion for summary judgment), actually denies Seven-Up the right to a determination on the merits of Bubble Up’s right to registration on the mere basis that the matter of the right to use the mark has been determined adversely to Seven-Up.