TTAB Dismissal of Sunkist’s Opposition Reversed by CAFC

TTAB Dismissal of Sunkist’s Opposition Reversed by CAFC

Sunkist submitted sixteen registrations during the opposition, but the TTAB dismissed the case finding no likelihood of confusion.

The US Court of Appeals for the Federal Circuit (CAFC) has reversed a Trademark Trial and Appeal Board (TTAB) ruling that found no likelihood of confusion between the marks KIST and SUNKIST. Sunkist Growers, Inc. opposed Intrastate Distributors, Inc.’s applications to register the mark KIST in standard characters and the stylised mark for soft drinks, sodas, sparkling water, and related concentrates and syrups.

Sunkist submitted sixteen registrations to support its opposition. The TTAB found that four of six DuPont factors favoured likely confusion but held that the similarity of the marks and the absence of actual confusion outweighed the other factors.

On appeal, the CAFC found that the TTAB erred by relying on a cropped image of lips to suggest KIST means “kissed,” despite the lips image not being part of the registered mark and lacking evidence that consumers associate the mark with a kiss. The court also reiterated that failure to prove actual confusion does not defeat a trademark claim because actual confusion is often hard to prove.

Concluding that the KIST marks are likely to cause confusion with Sunkist’s registered marks, the CAFC reversed the TTAB’s dismissal.