On My Mind Blog

Genuine Risk (Applicant), a limited liability company in Louisville, Kentucky, applied to register for “bourbon” the mark GOOD TIMES BOURBON in plain lettering (later amended to delete BOURBON from the mark).  Applicant claimed use of this mark since August 22, 2020, and prior ownership of  the registered mark CASA GOOD TIMES.

The Examining Attorney refused registration, finding a likelihood of confusion with the following cited marks for alcoholic beverages, distilled spirits, or whiskey, all owned diversely:

• GOODE TIMES GUARANTEED
• LET THE GOOD TIMES ROLL
• WE GROW GOOD TIMES
• CERTIFIED GOOD TIME & Design (design of fist with thumb pointing upward)
• GUARD THE GOOD TIMES

Applicant appealed to the TTAB, obtaining reversal of this refusal, and the mark has recently been approved for publication

On the one hand, the TTAB found a partial legal identity of the respective goods, and absent any limitation, it presumed that the goods were provided in the same trade channels to the same classes of purchasers.  These factors weighed heavily in favor of finding a likelihood of confusion.

On the other hand, the GOOD TIMES elements shared by these third-party marks suggested “the merriment consumers anticipate enjoying when imbibing alcoholic beverages.”  Also, the TTAB found the cited marks could be distinguished from one another by the additional matter in the respective marks or different overall connotations. Therefore, the TTAB found the cited marks to be conceptually weak as source indicators, and in the absence of any evidence of commercial strength, they were entitled to a limited scope of protection. This weighed against finding a likelihood of confusion.

The Examining Attorney had contended that purchasers likely would view Applicant’s mark as a shortened form of each cited mark, the required degree of similarity was lessened as the goods were legally identical in part, and  the marks in issue had similar meanings and overall commercial impressions, due to the shared wording GOOD TIMES. 

The TTAB disagreed, determining it unlikely that consumers would view Applicant’s mark as a shortened form of any of the cited marks.  The TTAB reasoned that despite the similarity of the cited marks visually and aurally, each possessed differing connotations, structures, meanings, and overall commercial impressions when compared with Applicant’s mark.

Thus, the TTAB held that the differences in the respective marks, and the conceptual weakness of the GOOD TIMES element, prevailed over the legal identity of the goods, trade channels, and purchasers, weighing against a finding of likelihood of confusion.

Accordingly, after Applicant prosecuted its application for nearly six years, the TTAB reversed the refusal to register Applicant’s GOOD TIMES mark, affording more weight to the evidence of conceptual weakness of the term GOOD TIMES and to the overall dissimilarity of the cited marks when compared to it.

In re Genuine Risk, Application No. 9017090 (T.T.A.B. March 23, 2026).

Author’s Note:

It’s certainly counter-intuitive for an applicant to argue that a term shared in common with other cited marks is weak when that term comprises the entirety of the applied-for mark.  This asserted weakness undoubtedly would be raised as a defense if the applicant were to try to enforce its registration against a later-adopted mark.

Notwithstanding this decision by a particular panel of the TTAB, it may be problematic to adopt a mark which predominantly contains an element commonly found in preexisting marks, regardless of whether the marks are for alcoholic beverages or other goods or services.  This is particularly true when your mark consists of the common element without having additional distinguishing matter. 

Such problems may include the following:

• Your mark will not be unique in the marketplace.
• Actual confusion may take place.
• You may suffer reputational harm if there is adverse publicity as to a product or service having a prior similar mark.
• Your mark may be refused registration.
• A different TTAB panel of judges may affirm the refusal.
• Whether or not the refusal is reversed on appeal, you will likely incur substantial legal fees.
• The scope of protection of your mark against similar marks may be limited.
• Any of the prior registrants may oppose your application.
• Any of the prior registrants may assert that your mark infringes its mark, exposing you to possible injunctive relief and damages and additional legal fees.

To avoid these problems, you might be better off selecting a different mark.

For further information, please contact Louis S. Ederer, William M. Borchard, or your CLL attorney.