concurring.
I agree with the result in this case. In an opposition based on section 2(d) (15 U.S.C. § 1052(d)), the Commissioner may not deny a registration to an applicant whose rights in a mark are “superior” to the rights of the opposer. In this case, the mark was not “previously used in the United States by another,” so the Commissioner is not authorized by section 2(d) to refuse a registration. However, I cannot agree with the interpretation placed on Hollowform by the board and by the majority in this case.
The issue whether the Commissioner is required to grant a geographically-restricted registration or otherwise recognize the rights of an opposer when the opposer establishes superior common law rights in a limited market area was not raised by the parties in Hollowform and was not raised by the parties in this case. In both cases, the opposer was not asking that the registration be restricted, but that it be denied. Fashioning a restriction-type remedy is inappropriate ' when it was not raised or briefed by the parties and when the nature and availability of the remedy is as controversial as are restrictions arising from oppositions. The holding in Hollowform was narrow and the majority’s extrapolation of Hollowform in this case (see the first sentence of the Opinion section stating, without limitation, that an applicant with “superior” rights is entitled to an unrestricted registration) is unnecessary and unjustified.