Sazerac Brands, LLC v. Wadada Spirits, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: February 4, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Sazerac Brands, LLC
v.
Wadada Spirits, LLC
_____
Opposition No. 91283727
_____
J. Michael Keyes, Charlene M. Krogh, Lindsey Sadler, Connor Hansen and Breanne
Werners of Dorsey & Whitney LLP, for Sazerac Brands, LLC.
Teresa Mason of Rangel Mason, PC,
for Wadada Spirits, LLC.
_____
Before Heasley, Cohen, and Bradley,
Administrative Trademark Judges.
Opinion by Bradley, Administrative Trademark Judge:
Wadada Spirits, LLC (“Applicant”) seeks to register the standard-character mark
FIREBURN 1878 (“1878” disclaimed)1 and the composite mark depicted below on the
Principal Register for “alcoholic beverages, except beer; liquor” in International Class
33:
1 Application Serial No. 97149968, filed on December 1, 2021 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in commerce.

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(with “1878” disclaimed)2 (collectively referred to as the “FIREBURN 1878 Marks”).
Sazerac Brands, LLC (“Opposer”) filed a notice of opposition to registration of
Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
asserting priority and a likelihood of confusion3 with Opposer’s previously used and
registered marks including the standard character mark FIREBALL for liqueurs,4
whisky,5 and alcoholic beverages, except beer6, in International Class 33, as well as
other FIREBALL, FIREBALL formative, and FIREBALL & Design marks.7
2 Application Serial No. 97153510, filed on December 2, 2021 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in commerce.
The description of the mark states that it “consists of the word ‘FIREBURN’ in stylized font.
Above the word ‘FIREBURN’ is a horizontal line. Centered above the horizontal line is an
arch. Within the arch is a symbol of an agave. Below the word ‘FIREBURN’ is a horizontal
line. Centered below the horizontal line is an upside down arch. Within the arch is the date
‘1878’.”
3 1 TTABVUE.
Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the
page(s) of the docket entry where the cited materials appear.
4 Registration No. 2852432 issued on June 15, 2004, and renewed. This mark is identified in
the Trademark Status and Document Retrieval (“TSDR”) system as “typeset” which is the
legal equivalent of a standard character mark. See In re Viterra Inc., 671 F.3d 1358, 1363 n.2
(Fed. Cir. 2012) (“until 2003, ‘standard character’ marks formerly were known as ‘typed’
marks”); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 807.03(i) (2025).
5 Registration No. 3550110 issued on December 23, 2008, and renewed.
6 Registration No. 6130372 issued on August 18, 2020.
7 1 TTABVUE 7-8 ¶¶ 6-12, 23-43; see also 37 TTABVUE 17-18 (containing a chart of
Opposer’s pleaded registrations).

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As discussed further below, Opposer also contends another ground for opposition
was tried by implied consent, namely that Applicant lacked the requisite bona fide
intent to use the FIREBURN 1878 Marks in connection with the goods identified in
the opposed applications as of the application filing dates, in violation of Section 1(b)
of the Lanham Act, 15 U.S.C. § 1051(b).
In its Answer, Applicant admitted that Opposer is the “purported owner” of the
pleaded registrations,8 but otherwise denied the salient allegations of Opposer’s
Notice of Opposition. Applicant did not assert any affirmative defenses.
Only Opposer filed a brief.9 Applicant did not file a brief, take testimony, or
introduce any other evidence during its testimony period, but it is not required to do
so. See Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548,
2018 TTAB LEXIS 168, at *12 n.13 (TTAB 2018) (“Because Respondent, as defendant
herein, is under no obligation to submit evidence or a brief, we do not construe
Respondent’s failure to do so as a concession of the case.”); see also Trademark Rule
2.128(a)(1), 37 C.F.R. § 2.128(a)(1).
For the reasons discussed below, we sustain the opposition on the lack of bona fide
intent to use claim, and therefore do not reach the likelihood of confusion claim. See
Tequila Cuadra S. de RL de CV v. Manufacturera de Botas Cuadra, S.A. de C.V., No.
8 12 TTABVUE 2-3 ¶¶ 3, 14; 1 TTABVUE 7-8 ¶¶ 3-12.
9 Opposer’s redacted brief is at 37 TTABVUE and the confidential version is at 38 TTABVUE.
Opposer designated portions of its trial brief and its evidence in the record as confidential
under the Board’s Standard Protect Order and filed the unredacted versions under seal. All
TTABVUE citations in this opinion are to the redacted publicly accessible versions of
materials.

Opposition No. 91283727
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91282327, 2025 TTAB LEXIS 207, at *2 (TTAB 2025) (“Because we resolve this
proceeding on Opposer’s lack of bona fide intent claim, we need not and do not reach
Opposer’s likelihood of confusion claim.”).
I. Trial Record
The record consists of the pleadings, and, by operation of Trademark Rule
2.122(b), the files of Applicant’s involved applications. In addition, Opposer submitted
testimony, notices of reliance, and exhibits as listed in its brief.10 As noted previously,
Applicant did not file any evidence. We have carefully considered the entire record,
and relevant evidence is discussed throughout this opinion. See Quiktrip W., Inc. v.
Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (Board not obliged to
expressly discuss every piece of evidence); In re Miracle Tuesday LLC, 695 F.3d 1339,
1348 (Fed. Cir. 2012) (“[T]he mere fact that the Board did not recite all of the evidence
it considered does not mean the evidence was not, in fact, reviewed.”).
II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes proceeding. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
1304-05 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1373-74 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 128 (2014)). Opposer, as the plaintiff in the
action, must show its entitlement to a statutory cause of action by demonstrating (i)
an interest falling within the zone of interests protected by the statute, and (ii) a
10 37 TTABVUE 13-14.

Opposition No. 91283727
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reasonable belief in damage proximately caused by the registration of the mark.
Corcamore, 978 F.3d at 1305-06; Mars Generation, Inc. v. Carson, No. 91224726, 2021
TTAB LEXIS 386, at *8 (TTAB 2021).
Here, Opposer established its entitlement to oppose Applicant’s mark by making
of record its pleaded registrations,11 which form the basis for a plausible Section 2(d)
likelihood of confusion claim. See Conopco, Inc. v. Transom Symphony OpCo, LLC,
No. 91256368, 2022 TTAB LEXIS 194, at *11 (TTAB 2022). “[O]nce an opposer meets
the requirements for [statutory entitlement], it can rely on any of the statutory
grounds for opposition set forth in . . . [the Trademark Act].” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 1377 (Fed. Cir. 2012). Accordingly, Opposer
has also established its entitlement for its claim of Applicant’s lack of bona fide intent
to use the FIREBURN 1878 Marks.
III. Whether a Claim of Lack of Bona Fide Intent to Use Was Tried
by Implied Consent
Opposer admits that its Notice of Opposition does not include a claim that
Applicant lacked a bona fide intent to use the FIREBURN 1878 Marks in commerce.12
Applicant has not filed a brief or any evidence, and has therefore not expressly
consented to trial of this claim. Accordingly, we consider whether Opposer’s claim of
Applicant’s lack of bona fide intent to use was tried by implied consent under Fed. R.
Civ. P. 15(b), made applicable to Board proceedings by Trademark Rule 2.116(a). See
Hole in 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 TTAB LEXIS 9, at *20 (TTAB
11 29 TTABVUE 2-5, 11-79 (Exhibits O49-O58).
12 37 TTABVUE 51.

Opposition No. 91283727
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2020) (“when issues not raised by the pleadings are tried by the . . . implied consent
of the parties, they shall be treated in all respects as if they had been raised in the
pleadings”).
The Board may find implied consent to the trial of an unpleaded issue “only where
the non-offering party (1) raised no objection to the introduction of evidence on the
issue, and (2) was fairly apprised that the evidence was being offered in support of
the issue.” Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *18
(TTAB 2024) (citing TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 507.03(b) (June 2025). We consider the circumstances presented here to
determine if Opposer meets this standard.
Toward the beginning of the discovery period,13 Opposer served multiple discovery
requests regarding Applicant’s intent to use its applied-for marks,14 including:
• “Documents sufficient to show Applicant’s intent to use the FIREBURN
[1878] Marks in U.S. interstate commerce in connection with the goods
identified in the Applications.”;15
• “Documents Concerning the target consumer to whom You market, offer,
or sell or intend to market, offer, or sell the goods identified in the
Applications under the FIREBURN [1878] Marks.”;16
13 See 16-17 TTABVUE (parties’ initial disclosures were due October 19, 2023); 27 TTABVUE
34, 59 (Opposer served discovery requests on December 27, 2023); 26 TTABVUE 7 (discovery
closed on November 22, 2024).
14 27 TTABVUE 23-34 (Opposer’s First Set of Interrogatories), 48-59 (Opposer’s First Set of
Requests for Production of Documents and Things).
15 Opposer’s First Set of Requests for Production of Documents and Things, 27 TTABVUE 54
(RFP No. 5).
16 Id. (RFP No. 7).

Opposition No. 91283727
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• “Documents Concerning the locations where Applicant manufactures or
intends to manufacture the goods in the Applications under the
FIREBURN [1878] Marks.”17
• “Documents sufficient to show the steps You have taken to manufacture
and sell the goods identified in the Applications under the FIREBURN
[1878] Marks.”18
• “Any business plans prepared by Applicant or anyone acting on Applicant’s
behalf Concerning the FIREBURN [1878] Marks or any products You sell
or intend to sell under the FIREBURN [1878] Marks.”;19
• “State the intended dates of first use of the FIREBURN [1878] Marks in
U.S. interstate commerce in connection with the goods identified in the
Applications.”;20
• “Identify the Person(s) with the most knowledge of Applicant’s use of
and/or intent to use the FIREBURN [1878] Marks in connection with the
goods identified in the Applications.”21
• “Describe in detail the channels of trade through which You have sold or
intend to sell the goods identified in the Applications under the
FIREBURN [1878] Marks”22; and
• “Describe in detail all methods You use or intend to use to advertise,
market, or promote Applicant’s goods identified in the Applications under
the FIREBURN [1878] Marks.”23
Applicant’s operative Second Supplemental Responses to Opposer’s First Set of
Interrogatories and Requests for Production do not contain any objections to the
discovery requests.24
17 27 TTABVUE 55 (RFP No. 12).
18 Id. at 56 (RFP No. 19).
19 Id. at 57 (RFP No. 28); see also 27 TTABVUE 54-56 (RFP Nos. 9, 11, 13-14, 18, 23).
20 Opposer’s First Set of Interrogatories, 27 TTABVUE 29 (Int. No. 7).
21 Id. (Int. No. 8).
22 Id. at 30 (Int. No. 12).
23 Id. (Int. No. 17); see also 27 TTABVUE 29-32 (Int. Nos. 10, 12-14, 21, 27-28).
24 27 TTABVUE 36-46, 60-71.

Opposition No. 91283727
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During its trial period, Opposer filed a Notice of Reliance on Discovery Materials.
Notably, in the Notice of Reliance, Opposer explicitly states in thirteen instances that
Applicant’s discovery responses are relevant to Applicant’s lack of bona fide intent to
use the FIREBURN 1878 Marks in commerce.25 Applicant did not object to Opposer’s
Notice of Reliance.
In the Statement of Issues in its trial brief, Opposer lists the second issue in the
proceeding as:
Did Applicant lack the requisite bona fide intent to use the
FIREBURN [1878] Marks in U.S. commerce in connection
with the goods identified in the Applications at the time it
filed the Applications in violation of Section 1(b) of the
Lanham Act, 15 U.S.C. § 1051(b)?26
Applicant did not file a trial brief or otherwise raise an objection to Opposer
identifying Applicant’s lack of bona fide intent as an issue in this proceeding.
Considering the above circumstances, we find that Applicant was fairly apprised
that its bona fide intent to use was at issue in this proceeding and that its discovery
responses were being offered to demonstrate its lack of bona fide intent. Specifically,
Opposer’s discovery requests were directed to Applicant’s intent to use, and the
Opposer’s notice of reliance and trial brief both contained explicit references to a
claim of Applicant’s lack of bona fide intent to use the FIREBURN 1878 Marks in
commerce. We also find that Applicant raised no objection to the introduction of this
evidence by failing to assert any objections in its responses to Opposer’s discovery
25 27 TTABVUE 3-6 ¶¶ 2b, 4a, 4c, 4d, 4e, 4f, 4h, 6b, 6c, 6d, 6e, 6f, 6g.
26 37 TTABVUE 14.

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requests, and by failing to file a brief or any other objection to Opposer’s notice of
reliance or trial brief.27 See Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No.
91263919, 2022 TTAB LEXIS 383, at *17-19 (TTAB 2022) (finding opposer’s prior use
based on common law tried by implied consent where the “[a]pplicant did not raise
any objection to this testimony as it did not file a brief on the case and it did not seek
to cross-examine [o]pposer’s witness”). Accordingly, Opposer’s claim of Applicant’s
lack of bona fide intent to use was tried by implied consent and “the pleadings are
deemed amended under Fed. R. Civ. P. 15(b)” to include this claim. Hole in 1 Drinks,
2020 TTAB LEXIS 9, at *27.
IV. Lack of Bona Fide Intent to Use
Applicant filed its applications under Trademark Act Section 1(b) which requires
that Applicant have “a bona fide intention, under circumstances showing [its] good
faith . . . to use a trademark in commerce.” 15 U.S.C. § 1051(b). “Because a bona fide
intent to use the mark in commerce is a statutory requirement of a valid intent-to-
use trademark application under Section 1(b), the lack of such intent is a basis on
which an opposer may challenge an applicant’s mark.” M.Z. Berger & Co. v. Swatch
AG, 787 F.3d 1368, 1375 (Fed. Cir. 2015).
27 Any objection by Applicant that the discovery responses were irrelevant or immaterial
because a lack of bona fide intent to use claim had not been alleged in the proceeding would
be substantive, and as such should have been raised either in its trial brief or in a statement
of objections attached to its trial brief. See TBMP § 707.02(c) (“object[ions] to a notice of
reliance on substantive grounds, such as that evidence offered under the notice . . . is
incompetent, irrelevant, or immaterial . . . should be raised in or with the objecting party’s
brief on the case or in an appendix or separate statement of objections attached to the brief”);
Genesco Inc. v. Martz, No. 91121296, 2003 TTAB LEXIS 123, at *11 (TTAB 2003) (“with
regard to substantive objections [to notices of reliance] (e.g., improper rebuttal, hearsay),
these . . . should be raised in the objecting party’s brief on the case”).

Opposition No. 91283727
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In determining whether Applicant had a bona fide intent to use its FIREBURN
1878 Marks at the time of filing its applications, we examine objective evidence of
Applicant’s intent considering the totality of circumstances to ascertain whether
“[A]pplicant’s intent to use the mark was firm and not merely intent to reserve a right
in the mark[s].” Tiger Lily Ventures Ltd. v. Barclays Capital Inc., 35 F.4th 1352, 1365
(Fed. Cir. 2022). “Opposer has the initial burden of demonstrating by a
preponderance of the evidence that [A]pplicant lacked a bona fide intent to use [its]
mark[s] on the identified goods on the filing date of its application[s].” Tequila
Cuadra, 2025 TTAB LEXIS 207, at *12-13 (TTAB 2025) (citation omitted). If Opposer
meets this burden then “the burden shifts to [A]pplicant to rebut that prima facie
case by producing evidence which would establish that it had the requisite bona fide
intent to use the mark[s] when it filed its application[s].” Id. at *13.
Opposer may demonstrate that Applicant lacks the requisite bona fide intent to
use by showing Applicant lacks documentary evidence regarding its intent. Boston
Red Sox Baseball Club Ltd. P’ship v. Sherman, No. 91172268, 2008 TTAB LEXIS 67,
at *16 (TTAB 2008) (“absence of any documentary evidence on the part of an applicant
regarding such intent constitutes objective proof sufficient to prove that the applicant
lacks a bona fide intention to use its mark in commerce”). In its responses to Opposer’s
document requests, Applicant stated that it was “not aware of any responsive
documents” regarding:

Opposition No. 91283727
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• Strategy for the promotion, distribution, and sale of the goods identified in
the Applications under the FIREBURN 1878 Marks;28
• Steps it has taken to manufacture and sell the goods identified in the
Applications under the FIREBURN 1878 Marks;29
• Licenses or regulatory approvals that it has sought or obtained to
manufacture and sell alcoholic beverages or liquor bearing the FIREBURN
1878 Marks in the United States;30
• Agreements with any third party to manufacture, distribute, sell, or
promote the goods identified in the Applications under the FIREBURN
1878 Marks;31
• The locations where Applicant manufactures or intends to manufacture
the goods in the Applications under the FIREBURN 1878 Marks;32
• The geographic areas of distribution or intended distribution for the goods
identified in the Applications under the FIREBURN 1878 Marks;33
• The retailers who sell or will offer for sale the goods identified in the
Applications under the FIREBURN 1878 Marks;34
• The retail price at which it intends to sell the goods identified in the
Applications under the FIREBURN 1878 Marks;35
• The target consumer to whom it intends to market, offer, or sell the goods
identified in the Applications under the FIREBURN 1878 Marks;36
• Market research concerning the sale of the goods identified in the
Applications under the FIREBURN 1878 Marks;37 or
28 27 TTABVUE 63 (Response to RFP No. 8).
29 Id. at 67 (Response to RFP No. 19).
30 Id. at 66 (Response to RFP No. 18).
31 Id. at 68 (Response to RFP No. 24).
32 Id. at 64 (Response to RFP No. 12).
33 Id. at 65 (Response to RFP No. 13).
34 Id. (Response to RFP No. 14).
35 Id. at 64 (Response to RFP No. 11).
36 Id. at 63 (Response to RFP No. 7).
37 Id. at 64 (Response to RFP No. 10).

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• Every medium it intends to use to promote the goods identified in the
Applications under the FIREBURN 1878 Marks.38
Additionally, when Opposer requested “[d]ocuments sufficient to show Applicant’s
intent to use the FIREBURN [1878] Marks in U.S. interstate commerce in connection
with the goods identified in the Applications,”39 Applicant responded by directing
Opposer to “see the file history for Applicant’s FIREBURN [1878] [M]arks,
Application Nos. 97149968 and 97153510 [i.e., the applications that are the subject
of this opposition].”40 However, the mere act of filing intent-to-use applications is
insufficient to establish Applicant’s bona fide intention to use its FIREBURN 1878
Marks in commerce for the identified goods. Societe Des Produits Nestle S.A. v.
Taboada, No. 91232597, 2020 TTAB LEXIS 267, at *39 (TTAB 2020).
In its answers to Opposer’s interrogatories, Applicant responded that it “has no
information responsive to this interrogatory” regarding:
• The intended dates of first use of the FIREBURN 1878 Marks in U.S.
interstate commerce in connection with the goods identified in the
Applications;41
• Its strategy for selling the goods identified in the Applications under the
FIREBURN 1878 Marks in the United States;42
• The steps it has taken to sell alcoholic beverages or liquor under the
FIREBURN 1878 Marks in the United States;43
38 27 TTABVUE 63 (Response to RFP No. 9).
39 Id. at 62 (RFP No. 5).
40 Id. (Response to RFP No. 5).
41 Id. at 38-39 (Response to Int. No. 7).
42 Id. at 39-40 (Response to Int. No. 11).
43 Id. at 42 (Response to Int. No. 27).

Opposition No. 91283727
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• The steps it has taken to comply with any regulatory requirements for
selling alcoholic beverages or liquor under the FIREBURN 1878 Marks in
the United States;44
• The channels of trade through which it intends to sell the goods identified
in the Applications under the FIREBURN 1878 Marks;45
• The retail price or anticipated retail price for each variation of alcoholic
beverage and liquor sold or intended to be sold under the FIREBURN 1878
Marks;46
• The methods it intends to use to advertise, market, or promote Applicant’s
goods identified in the Applications under the FIREBURN 1878 Marks;47
or
• The target consumer to whom it intends to market, offer, or sell the goods
identified in the Applications under the FIREBURN 1878 Marks.48
Considered together, the lack of any information or documents regarding
Applicant’s intended use beyond its applications, including its failure to take any
steps to obtain the regulatory approvals needed to sell the alcoholic beverages covered
by its applications,49 meets Opposer’s burden to establish a prima facie case of
44 27 TTABVUE 42 (Response to Int. No. 28).
45 Id. at 40 (Response to Int. No. 12).
46 Id. (Response to Int. No. 14).
47 Id. at 41 (Response to Int. No. 17).
48 Id. at 40 (Response to Int. No. 13).
49 Daniel Suich, the Global Brand Director for the Fireball brand at Sazerac Company, Inc.,
testified he is “familiar with the regulatory approvals required to allow Sazerac to offer and
sell FIREBALL branded alcoholic beverage products.” 31 TTABVUE 3 ¶ 1, 11 ¶ 25. He
explained that “the Alcohol and Tobacco Tax and Trade Bureau (‘TTB’) is the federal
regulatory agency that oversees the marketing, advertising, and sale of alcohol in the U.S.”
and the TTB “requires producers and importers of alcoholic beverages to apply for a
Certificate of Label Approval (‘COLA’) before marketing or offering for sale alcoholic beverage
products.” 31 TTABVUE 11-12 ¶¶ 25, 27. See also 27 C.F.R. § 5.3(a) (“any bottler of distilled
spirits . . . is required to first obtain from TTB a COLA covering the label(s) on each
container”); 27 C.F.R. § 5.3(c) (“It is unlawful for any person engaged in business as a distiller,
rectifier (processor), . . . directly or indirectly, or through an affiliate, to sell or ship, or deliver
for sale or shipment, or otherwise introduce or receive in interstate or foreign commerce, . . .

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Applicant’s lack of bona fide intent to use. See Tequila Cuadra, 2025 TTAB LEXIS
207, at *16 (in finding opposer met its burden of establishing a prima facie case,
stating “[o]f particular significance are [a]pplicant’s responses to [o]pposer’s
interrogatories, wherein . . . [a]pplicant acknowledged that it has had no
communications with the necessary regulatory authority in the United States
concerning the production and sale of any . . . alcoholic beverage” and the applicant
also did not produce any “applications for regulatory approvals”). The burden thus
shifts to Applicant to rebut Opposer’s prima facie case. However, Applicant did not
file any evidence or a trial brief, and there is no evidence of record that demonstrates
its bona fide intent to use the FIREBURN 1878 Marks. Accordingly, Applicant has
failed to rebut Opposer’s prima facie case.
Decision: The opposition is sustained based on Opposer’s claim that Applicant
did not have a bona fide intention to use the marks in commerce when it filed the
opposed applications.
any distilled spirits in containers unless such containers are marked, branded, labeled, and
packaged in conformity with the regulations in this part.”).