Sometimes, trademark confusion battles between brands can start to sound a bit like an elementary school playground fight. Case in point? Bullshine v. Sazerac, which was just decided in both brands’ favor… sort of.

Back in 2015, Baltimore-based distiller Bullshine applied for a trademark for Bullshine Firebull, meant to cover “alcoholic beverages except beers.” This application was quickly opposed by Louisiana-based Sazerac, which makes Fireball Whisky.

You can probably already guess their reasoning – they argued that “Firebull” would create trademark confusion with consumers for “Fireball.” An understandable argument.

Bullshine, however, was not about to go down without a fight. In response, the company asked the USPTO to cancel Sazerac’s trademarks for Fireball. Why? Their argument was that the name “Fireball” was too generic, used to convey a “common alcoholic drink containing a spicy flavoring element such as cinnamon or hot sauce.”

Spicy indeed. How did this play out?

TTAB and CAFC Essentially Tell Brands to Just Try to Get Along

First up was the Trademark Trial and Appeal Board (TTAB), which dismissed Sazerac’s opposition to Bullshine registering Bullshine Firebull as a trademark. However, it was not a flat out win for Bullshine, because the Board also upheld Sazerac’s Fireball as a valid mark, arguing that the differences in the marks made trademark confusion unlikely.

Unhappy with this decision, Bullshine appealed and the case then went to the U.S. Court of Appeals for the Federal Circuit (CAFC). On March 12 of this year, the CAFC said that the TTAB’s decision was correct and the two marks could coexist just fine.

Of interesting note, their ruling went against the often debated “once generic, always generic” rule, clarifying that the common understanding regarding whether or not a term is generic can change over time. Moreover, they found that the important point was whether the mark was deemed generic at the time of registration and after, and that Fireball Whisky passed this test.

Neither company has commented on the decision, but hopefully this is something that both of them can simply put behind them and move on. Fighting to protect the integrity and uniqueness of your trademark is understandable, but sometimes the time and effort you spend battling other brands might be better spent promoting your own.

That being said, with both marks allowed to coexist in the marketplace, the results of this case do not rule out potential trademark infringement in the future if Bullshine ever uses its mark in a way that causes consumer confusion between Firebull and Fireball.

Wondering if a fight over arguably similar marks is worth your precious time? Set up a consultation and we can talk it over.