Finding the Issue of Lack of Bona Fide Intent Tried by Implied Consent, TTAB Sustains Opposition to FIREBURN 1878 for Alcoholic Beverages

The Board sustained this opposition to registration of the mark FIREBURN 1878, in standard character and logo form, for "alcoholic beverages, except beer; liquor." concluding that Applicant Wadada Spirits lacked a bona fide intent to use the marks when it filed the opposed applications. Opposer Sazerac, owner of the mark FIREBALL for the same goods, did not include a claim of lack of bona fide intent in its notice of opposition, but the Board found that the issue had been tried by implied consent. Sazerac Brands, LLC v. Wadada Spirits, LLC, Opposition No. 91283727 (February 4, 2026) [not precedential] (Opinion by Judge Jessica B. Bradley).

Implied Consent: Wadada did not file a brief or submit any evidence, so it never expressly consented to trial of the bona fide intent claim. So, the first question was whether the issue was tried "by implied consent under Fed. R. Civ. P. 15(b), made applicable to Board proceedings by Trademark Rule 2.116(a)." "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."

Sazerac served numerous discovery requests regarding Wadada’s intent to use its marks. In its responses, Wadada did not object to these discovery requests, nor did it object to Sazerac's notice of reliance citing Wadada's responses. And Sazerac listed in its brief, without objection, lack of bona fide intent as one of the issues in this proceeding. "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."

Lack of Bona Fide Intent: A party may demonstrate that an applicant lacks the requisite bona fide intent to use by showing that the applicant lacked 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). In its responses, Wadada stated that it was “not aware of any responsive documents” regarding its strategy for promoting and selling its goods, steps taken to manufacture the goods, licenses or regulatory approvals, distribution agreements, price of the goods, target customers, market research, or media promotion.

Wadada pointed to the prosecution histories of the opposed applications as evidence of its intent. The Board, as usual, rejected this contention: "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."

In its interrogatory answers, Wadada stated that it had no information regarding its intended first use dates, its sales strategy, steps taken to sell the goods, regulatory approvals, channels of trade, price, promotional channels, or target consumers.

The Board concluded that Sazerac had made a prima facie case of lack of bona fide intent, which Wadada failed to rebut. And so, the Board sustained the opposition on that basis, declining to reach Sazerac's likelihood of confusion claim.

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TTABlogger comment: This decision reminded me of the Bears' 46-10 win over the Patriots in the 1986 Super Bowl, only worse. BTW: the orange and blue color scheme of the TTABlog is borrowed from the colors of the University of Illinois. George Halas, and Illinois alum, took those colors for his Chicago Bears.

Text Copyright John L. Welch 2026.