When Is a Trademark Generic? Federal Circuit Clarifies in “Fireball” Whiskey Dispute

Bullshine Distillery LLC v. Sazerac Brands, LLC

A recent Federal Circuit decision, Bullshine Distillery LLC v. Sazerac Brands, LLC, tackled the question of when a term is considered generic for trademark purposes. The case centered on Sazerac’s popular “FIREBALL” cinnamon whisky and Bullshine’s attempt to register the mark “BULLSHINE FIREBULL” for alcoholic beverages. Sazerac opposed Bullshine’s application, arguing it was too similar to its own “FIREBALL” marks, while Bullshine countered that “fireball” was a generic term for spicy, cinnamon-flavored alcoholic drinks and thus not eligible for trademark protection.

The Federal Circuit clarified that the key moment for deciding whether a trademark is generic is the time of registration—not at any point before or after. This means that even if a term was generic in the past, what matters is how consumers viewed it when the trademark was actually registered. The court found that, at the time Sazerac registered “FIREBALL,” there was enough evidence to show that consumers did not see “fireball” as a generic term for cinnamon whisky or liqueur, but rather as a distinctive brand.

The court also addressed whether Bullshine’s “BULLSHINE FIREBULL” mark was likely to be confused with Sazerac’s “FIREBALL.” Here, the court agreed with the Trademark Trial and Appeal Board’s finding that, despite some similarities, the marks were different enough in appearance, sound, and meaning that consumers were unlikely to confuse the two. The court noted that “FIREBALL” is conceptually weak (since it suggests the spicy flavor of the drink), but still found no likelihood of confusion.

This decision is important for businesses and trademark owners, as it reinforces that the relevant time for assessing genericness is when the mark is registered, and that even “weak” marks can be protected if consumers recognize them as brands rather than generic terms. It also highlights the importance of consumer perception and careful analysis of the similarities between marks in trademark disputes.

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