IP Law Daily, TRADEMARK—T.T.A.B.: Registration of FIREBURN mark denied due to failure to produce documentary evidence of intent to use, (Feb 9, 2026)

By Kevin M. Finson, J.D.

An applied-for mark for use with alcoholic beverages was refused registration because the applicant failed to show a bona fide intent to use.

A seller of alcoholic beverages failed to show the requisite bona fide intent to use its proposed mark FIREBURN, the Trademark Trial and Appeal Board has held. The seller, who hoped to use the mark for “alcoholic beverages, except beer; liquor” did not produce any responsive documents to discovery requests directed to evidence of intent to use. The opposer of the mark asserted priority and a likelihood of confusion with its previously used and registered marks, including the standard character mark FIREBALL for liqueurs (Sazerac Brands, LLC v. Wadada Spirits, LLC, No. 91283727 (T.T.A.B. Feb. 4, 2026)).

Wadada Spirits, LLC (Wadada) sought registration on the Principal Register of the standard character mark FIREBURN 1878, with 1878 disclaimed, and an associated composite mark, for use with “alcoholic beverages, except beer; liquor” in International Class 33. Sazerac Brands, LLC (Sazerac) filed notice of opposition on the grounds of priority and likelihood of confusion with its registrations for FIREBALL and FIREBALL-formative marks. Sazerac also argued that another ground, lack of bona fide intent to use, was tried by consent. Only Sazerac filed a brief. Wadada did not file a brief, take testimony, or introduce any other evidence.

Bona fide intent to use. After briefly noting that Sazerac had shown its entitlement to a statutory cause of action through its existing FIREBALL registrations, the board turned to whether the lack of bona fide intent to use had been tried by consent. The board found that Wadada had been fairly apprised that evidence was being offered in support of the issue by discovery requests which requested documents to show intent to use, and notices of reliance explicitly referring to the issue. Wadada raised no objection. Accordingly, the issue was tried by consent. The court then held that Sazerac had met its initial burden of showing that Wadada lacked a bona fide intent to use by pointing to the lack of documentary evidence in Wadada’s discovery responses. Wadada’s only response to requests for documentary evidence had been to point to its own intent-to-use application. The filing of an application alone was not sufficient to show an intent to use. With the lack of any documents to show Wadada had actually taken steps to use the applied-for mark, or to obtain regulatory approval to sell the alcoholic beverages which the application concerned, the board found that Sazerac had stated a prima facie case of lack of bona fide intent to use and Wadada had failed to rebut that prima facie case.

The board sustained the opposition on the bona fide intent to use ground and did not reach the likelihood of confusion issue.

The Case is Opposition No. 91283727.

Attorneys: J. Michael Keyes (Dorsey & Whitney LLP) for Sazerac Brands, LLC. Teresa Mason (Rangel Mason, PC) for Wadada Spirits, LLC.

Companies: Sazerac Brands, LLC; Wadada Spirits, LLC

Cases: Trademark USPTO