Sunkist Growers, Inc. v. Intrastate Distribs., Inc

Authored by: Jeremy J. Gustrowsky

In a recent decision, the U.S. Court of Appeals for the Federal Circuit reversed a ruling by the Trademark Trial and Appeal Board (TTAB) and sided with Sunkist Growers, Inc. in its challenge to Intrastate Distributors, Inc.’s (IDI) attempt to register the “KIST” trademark for soft drinks. Sunkist, which has used the SUNKIST mark for nearly a century on fruit and beverage products, argued that IDI’s “KIST” marks were too similar and likely to confuse consumers.

The TTAB had previously found that while the goods and trade channels were similar and Sunkist’s mark was strong, the marks themselves—SUNKIST and KIST—created different commercial impressions. The Board reasoned that “KIST” referenced a kiss, especially since some marketing materials included a lips image, while “SUNKIST” referenced the sun. However, the Federal Circuit disagreed, noting that the lips image was not a consistent or integral part of the KIST mark and that most Sunkist products use the word mark without a sun design. The court found no substantial evidence that consumers would associate “KIST” with a kiss or that the marks were sufficiently different.

Importantly, the court emphasized that when products are closely related, as they are here, even a moderate similarity in the marks can be enough to cause confusion. The lack of actual consumer confusion was not seen as decisive, since such evidence is often hard to obtain. With most relevant factors favoring Sunkist, the court concluded that allowing IDI to register “KIST” for soft drinks would likely confuse consumers familiar with the long-established SUNKIST brand.

This decision underscores the importance of both the appearance and the commercial impression of trademarks, especially when they are used on similar products. It also highlights that trademark owners do not need to prove actual confusion to protect their brands—showing a likelihood of confusion is enough.