... [is] generic.”) (quotation omitted, alterations in original); In re Northland, Aluminum Prods., Inc., 777 F.2d 1556, 1558 (Fed.Cir.1985) (because Bundt is generic term, proffered evidence of secondary meaning irrelevant). A party asserting unregistered trademark rights bears the heavy burden of establishing those rights. Ale House Mgmt., Inc. v. Raleigh Ale House Inc., 205 F.3d 137, 140 (4th Cir.2000) (affirming summary judgment that “ale house” for food and drink establishment is generic). 1. Resolution of Genericness Through Summary Judgment Schwan’s looks to the Fifth Circuit for the proposition that genericness is an issue that may not be resolved in summary judgment. See Soc’y of Fin. Exam’rs v. Nat’l Ass’n of Certified Fraud Exam’rs, Inc., 41 F.3d 223, 225 (5th Cir.1995) (<HOLDING>). But the Eighth Circuit has held that a mark
holding summary judgment improper where generic status and likelihoodofconfusion are factintensive inquiries that cannot be conducted properly without a trial holding that unauthenticated documents cannot be considered at summary judgment holding because trial court fully considered plaintiffs response to summary judgment motion failure to render summary judgment without notice or hearing harmless thus trial court was not required to vacate the summary judgment and then reinstate it to accomplish the same end holding that motion to dismiss cannot be treated as summary judgment holding that pleadings cannot be regarded as summary judgment evidence