The CAFC affirmed a decision by the Trademark Trial and Appeal Board that the mark FIREBALL holds trademark protection, rejecting Bullshine Distillery's argument that the term is generic based on historical usage. The court emphasized that genericness should be evaluated at the time of registration, not retrospectively. Additionally, the court found no likelihood of consumer confusion between Bullshine's BULLSHINE FIREBALL mark and Sazerac's established FIREBALL marks, supporting trademark rights of Sazerac while denying Bullshine's claims.
Bullshine's argument that once generic always generic, no matter how far removed from the time-period of genericness, is inconsistent with the statute.
The Board ultimately held that Sazerac's marks were not generic but also that Bullshine's mark did not pose a likelihood of confusion.
The CAFC first rejected Bullshine's argument that the TTAB applied the incorrect legal standard in assessing genericness.
The correct time period to assess genericness is at the time of registration and the court agreed that evidence of secondary meaning is valid.
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