Federal Circuit Reverses TTAB Decision in Sunkist Growers, Inc. v. Intrastate Distributors, Inc.: Minor Variations Are Not Always Enough to Prevent Confusion

On July 23, 2025, the U.S. Court of Appeals for the Federal Circuit reversed the Trademark Trial and Appeal Board’s (TTAB) dismissal of Sunkist Growers, Inc.’s (Sunkist) opposition to Intrastate Distributors, Inc.’s (IDI) applications to register the mark KIST for soft drinks.¹ The Federal Circuit held that the TTAB erred in its assessment of the similarity of the marks and emphasized that the absence of evidence of actual confusion does not weigh decisively against a trademark plaintiff. ² Concluding that there is a likelihood of confusion between Sunkist’s marks and IDI’s proposed registrations, the Court underscored the importance of grounding similarity analyses in substantial evidence. ³ The decision serves as a reminder that the DuPont factors must be applied in a balanced and holistic manner, rather than through selective emphasis, reinforcing the evidentiary rigor requirement in trademark opposition proceedings.

Sunkist Growers, owner of the well-known SUNKIST mark, opposed IDI’s applications to register KIST in both standard and stylized character form for use in connection with sodas, sparkling waters, and concentrates.⁴ Sunkist based its opposition on its longstanding SUNKIST registrations, which cover citrus beverages, concentrates, and related fruit products.⁵

The TTAB analyzed the DuPont likelihood of confusion factors and found that most factors weighed in Sunkist’s favor: the goods were closely related, the trade channels overlapped, the conditions of sale were similar, and the SUNKIST mark was strong.⁶

Despite these findings, the TTAB determined that there was no likelihood of confusion, reasoning that (1) KIST and SUNKIST created distinct commercial impressions (a “kiss” versus the “sun”) and (2) Sunkist had not demonstrated evidence of actual marketplace confusion.⁷ Based on those two factors, the Board dismissed the opposition.⁸

On appeal, the Federal Circuit held that the TTAB’s findings regarding the similarity of the marks were not supported by substantial evidence.⁹

First, the TTAB placed significant weight on a marketing image in which the KIST mark appeared alongside a set of lips, inferring that IDI intended consumers to associate the mark with the word “kiss.” ¹⁰ The Federal Circuit rejected this reasoning as unsupported and unpersuasive.¹¹ The Court observed that the lips image was not part of the applied-for mark, was inconsistently used in IDI’s marketing materials, and lacked evidentiary support showing that consumers were widely exposed to it.¹² The TTAB’s reliance was further undermined by the fact that the cropped image it highlighted came from a presentation emphasizing various sparkling water flavors, not lips or a “kiss.”¹³ The materials displayed the KIST mark on bottles featuring different flavors, none of which included lips imagery or referenced a kiss.¹⁴ Moreover, there was no evidence that the presentation was ever disseminated to consumers, as opposed to distributors or retailers.¹⁵ Accordingly, the Court found that the TTAB’s conclusion that KIST conveyed a “kiss” impression was speculative.¹⁶

Second, the TTAB placed undue weight on Sunkist’s sun-design registrations in concluding that SUNKIST conveyed a solar theme, when only two of the sixteen registrations submitted with the opposition contained a sun design.¹⁷ The Federal Circuit emphasized that the majority of Sunkist’s registrations are for the standard character mark without any design element, and that many of Sunkist’s products are marketed solely under the word SUNKIST.¹⁸ By focusing too narrowly on the design marks, the TTAB distorted the similarity analysis.¹⁹

With those errors corrected, the Court concluded that the marks are similar in appearance, sound, and overall commercial impression.²⁰ The Court further noted that the only factor weighing in IDI’s favor was not dispositive, as courts have long recognized that actual confusion is inherently difficulty to prove.²¹ Reaffirming longstanding precedent, the Court reiterated the principle that any doubts regarding the likelihood of confusion must be resolved against the newcomer.²²

The Federal Circuit’s decision underscores several important points for trademark practitioners. First, the TTAB must ground its analysis of the DuPont factors in substantial evidence; speculative marketing cues or isolated images that are not proven to shape consumer perception cannot support a finding on likelihood of confusion. Second, the case highlights the importance of standard character marks. When assessing similarity, the focus must remain on the actual registered mark rather than on incidental design elements that may appear in certain materials. Third, the Court emphasized the need to balance all of the DuPont factors. The absence of actual confusion does not override other evidence of likely confusion, particularly given the practical difficulty of proving actual confusion in the marketplace. Finally, the decision reaffirms the longstanding principle that the burden rests on the newcomer: applicants who adopt marks close to established brands do so at their own risk, and any doubts regarding confusion are resolved against them in order to protect both consumers and senior mark owners.

The Federal Circuit’s reversal in Sunkist v. Intrastate Distributors serves as an important reminder that trademark disputes often turn on how carefully the TTAB applies and balances the DuPont factors. Despite multiple factors weighing in Sunkist’s favor, the TTAB allowed theoretical distinctions in “commercial impression” to drive the outcome. The Federal Circuit corrected course, emphasizing that where goods are closely related and marks are highly similar in sound and appearance, the absence of actual confusion cannot outweigh the overall likelihood of confusion analysis.

For brand owners and trademark practitioners, the decision offers reassurance that strong, long-established marks will be safeguarded against encroachment by newcomers seeking to register similar terms. For applicants, the case serves as a reminder that even in a crowded marketplace, seemingly minor variations may not be sufficient to avoid a finding of likely confusion.