Fireball is strong, but weak … as a TM according the USPTO and US Federal Circuit
by Michael Antone, IP Attorney
In a recent decision in Sazerac Brands, LLC v. Bullshine Distillery LLC, the US Federal Circuit Court of Appeals affirmed with a USPTO Trademark Trial and Appeal Board (TTAB) decision finding that Sazerac’s Fireball trademark was not a generically descriptive name for spicy-sweet whiskeys and liquors, but that Fireball, while commercially strong, was conceptually weak trademark and therefore not broadly protectable.
Sazerac is opposing Bullshine Distillery’s US TM App No 86750668 to register the BULLSHINE FIREBULL trademark for Alcoholic beverages except beers. The Federal Circuit found that while FIREBALL had become a commercially strong mark for consumers of cinnamon whisky, it was conceptually weak because of the use of the Fireball mark for other products, most notably Atomic Fireball candy, which Sazerac admits have the same flavoring, and Sazerac’s previous admissions that Fireball was not inherently distinctive. In view of these findings, the court found that BULLSHINE FIREBULL and FIREBALL were sufficiently different that there is not a likelihood of confusion.
A question that the court did not have to answer is whether the same decision would have been reached had Bullshine applied to register Firebull without Bullshine or if Bullshine uses Firebull without BullShine.
For trademark owners, when deciding on a brand it is important to consider other uses of the same or similar marks for similar or dissimilar goods and services, as those other uses could limit the scope of your trademark protection even if you register your mark and build a successful brand.
Learn more in our Trademark FAQs and reach out to us to discuss your company’s IP needs.
