N.D. Fla. District Court Upholds TTAB's "BUSHWACKER" Decision

The U.S. District Court for the Northern District of Florida, in a Section 1071 review of the TTAB's decision in Sandshaker Lounge and Package Store, LLC v. Quietwater Entertainment, Inc., Cancellation No. 92051644 (January 31, 2013) [not precedential], granted the summary judgment motion of defendant Quitewater and upheld the Board's dismissal of the opposition. [Complaint here]. Sandshaker Lounge and Package Store, LLC v. Quietwater Entertainment, Inc., Civil Action No. 3:1cv114/MCR/CJK (N.D. Fla. September 5, 2014).


Sandshaker sought to cancel a registration for the mark BUSHWACKER for "entertainment services in the nature of a festival featuring live musical groups," on the ground of likelihood of confusion, claiming that it had previously used the identical mark for frozen drinks and for musical events, all of the parties' activities occurring in Pensacola Beach, Florida.

The district court concluded that Plaintiff Sandshaker lacked ownership rights in the BUSHWACKER mark due to its acquiescence in use of the same name by other businesses for their own drinks, prior to Defendant's Quietwater's first music festival. Therefore Sandshaker could not establish the priority of use necessary for a likelihood of confusion claim.

It is undisputed that Murphy and Sandshaker knowingly allowed other businesses in the area to use the same name for their own drinks prior to and after 1988. Campbell admitted it was too late for Sandshaker to attempt to claim exclusive use of the term for its drink. This knowing acquiescence to use of the name by other unrelated establishments is relevant to the TTAB’s finding that Sandshaker did not have trade identity rights sufficient to create priority.

The district court dismissed all five counts of the complaint, including trademark infringement, dilution.

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Text Copyright John L. Welch 2014.