dissenting.
Witco’s petition for cancellation is based on its alleged use of BRITOL to identify a mineral oil before Nicol’s application date of March 15, 1984. The majority correctly recognizes that “in relying on § 2(d) of the Lanham Act as a ground of opposition, it is not necessary that an opposer prove prior use of a similar term in a trademark sense.” The opposer or petitioner has the burden, however, to show that the use was such that it created “public exposure of [the] mark that would be expected to have [a] significant impact on the purchasing public.” Old Swiss House, Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1133, 196 USPQ 808, 810 (CCPA 1978). Accord Jim Dandy Co. v. Martha White Foods, Inc., 458 F.2d 1397, 1400-01, 173 USPQ 673, 675-76 (CCPA 1972); Era Corp. v. Electronic Realty Assoc., Inc., 211 USPQ 734, 745 (TTAB 1981) (use must be “of such a nature and extent as to create an association of [the] term with a single source.”). As Professor McCarthy explains, the prior use of the mark must be “analogous to trademark use.... Use ‘analogous’ to trademark use means use of a nature and extent such as to create an association of the term with the user’s goods.” 1 J. McCarthy, Trademarks and Unfair Competition § 20:4 at 1025-26 (1984).
Witco alleges “14 years of ... continuous use of BRITOL.” The only documentary evidence relied on by the Board to show public use of the mark BRITOL by Witco consists of “product guides” from 1972 and 1977, which list BRITOL as a mineral oil, annual editions of the “Buyers’ Guide Issue” of Chemical Week, and a 1984 “invoice” for a complimentary sample (quart) of “BRITOL.” The product guides and Buyers’ Guide Issues of Chemical Week are both dictionary-type listings of myriad products combined with associated names.1
The Board erred in relying on the 1984 invoice. This invoice is dated over seven months after Nicol’s trademark application and therefore cannot be relied upon to show priority.2
Two Witco vice presidents testified before the Board that Witco used the BRI-TOL mark in association with mineral oil for well over 20 years. Witco, however, failed to produce even a single invoice, advertisement, customer order, label or container, piece of correspondence or other document bearing the mark to support these statements.3
I find this case difficult to distinguish from Old Swiss House, Inc. where the court said prior use was not sufficient to preclude registration where
[t]he evidence [of prior use consisted] of 12 articles ... which appeared in various newspapers and trade journals [over a 4 month period], and a single speech ... by one of registrant’s vice-presidents at a shareholders’ meeting.... The articles ... were, in effect, press releases; in all but one, the mark ... was buried in the body of the articles.
*1067Old Swiss House, Inc., 569 F.2d at 1133, 196 USPQ at 810. Accord Jim Dandy Co., 458 F.2d at 1401, 173 USPQ at 676 (evidence of prior use insufficient in view of “the rather limited advertising use ... made ... at times in the years 1955-1964 (on a few billboards in 1955-1960, and in some trade journal, radio, newspaper and television advertising in 1960-1964)”).
I would therefore hold that the Board erred in relying on the 1984 invoice and that the Board was clearly erroneous in finding that the use of BRITOL by Witco was sufficient to “create an association of the term with the user’s goods.” McCarthy, supra, at 1025-26 or create “public exposure of [the] mark that would be expected to have [a] significant impact on the purchasing public.” Old Swiss House, Inc., 569 F.2d at 1133, 196 USPQ at 810.
Accordingly, I would reverse.
. For example, in the 1982 edition of the Buyer’s Guide Issue of Chemical Week, BRITOL is listed on a page with two hundred and twenty-nine other product names. The Buyer's Guide Issue lists thousands of products of substantially every producer of chemical products.
. The majority does not comment the Board’s apparent reliance on this invoice as necessary to its prior use holding. In its opinion the Board explained "[e]ven if no actual sales or deliveries of "BRITOL” oil by petitioner could be established” the documentary evidence “might well establish [Witco’s] rights.” (Emphasis added.)
.It is also noted that two other former employees testified that Witco never used BRITOL as a trademark for mineral oil.