In this consolidated opposition and cancellation proceeding, NJoy Spirits filed a motion for summary judgment, asserting that Frank Lin's registered mark BUCK is merely descriptive of "distilled spirits, namely, Kentucky Bourbon, for human consumption." The Board agreed, but it also found that a genuine issue of material fact existed as to whether BUCK has acquired distinctiveness under Section 2(f). Frank Lin Distillers Products, Ltd. v. NJoy Spirits, LLC. dba NJoy Spirits, LLC., Opposition No. 91211205 and Cancellation No. 92060288 (February 5, 2016) [not precedential].

Click here to view the image.

Mere Descriptiveness: In support of its motion, NJoy submitted recipes for "Kentucky Buck Cocktail," a Wikipedia entry for "buck" as a name for a family of mixed drinks that may include bourbon, and various Internet references to "Buck," "Kentucky Buck," and "Buck Bourbon" as mixed drinks.The Board found no genuine dispute that BUCK is merely descriptive of Frank Lin's Kentucky Bourbon. "[T]he internet evidence submitted by Petitioner clearly shows that (i) a 'buck' is a particular type of alcoholic cocktail or drink comprised of alcohol, ginger beer or ginger ale, and citrus, and that (ii) 'bucks' often comprise bourbon, e.g., the 'Kentucky Buck cocktail' or 'bourbon buck.'"In short, the mark BUCK immediately informs consumers that Frank Lin's goods may be used to make a "buck."

Acquired Distinctiveness: Frank Lin asserted that BUCK has acquired distinctiveness, and although Lin did not state this as an affirmative defense, the Board considered the issue as having been "tried" by consent, since both parties argued the issue.Lin provided a declaration stating that it has spent $100,000 promoting the BUCK mark and has sold 13,000 cases of its bourbon across the country. Google search results for "Buck Bourbon" yielded many references to Frank Lin's product. Drawing all inferences in favor of the non-movant, the Board ruled that a genuine issue of material fact remained as to whether Respondent’s use of the mark has been substantially exclusive and continuous and as to whether Lin's sales are significant as compared to the sales of competing products. The Board therefore denied NJoy's motion regarding the issue of acquired distinctiveness.

TTABlog comment: Does Frank Lin need a survey? NJoy? Will both pass the buck?