Sunkist Growers, Inc. v. Intrastate Distributors, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
SUNKIST GROWERS, INC.,
Appellant
v.
INTRASTATE DISTRIBUTORS, INC.,
Appellee
______________________
2024-1212
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
91254647.
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Decided: July 23, 2025
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L EIGH L INDQUIST , Sughrue Mion, PLLC, Washington,
DC, argued for appellant.
MICHAEL O. CUMMINGS , Cummings, McClorey, Davis &
Acho, P.C., New York, NY, argued for appellee.
______________________
Before P ROST , T ARANTO, and STARK, Circuit Judges.
P ROST , Circuit Judge.
Sunkist Growers, Inc. (“Sunkist”) appeals from a deci-
sion of the United States Trademark Trial and Appeal
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 2
Board (“Board”) dismissing Sunkist’s opposition to Intra-
state Distributors, Inc.’s (“IDI”) applications to register the
mark KIST in standard characters and the stylized mark
for soft drinks. Sunkist Growers, Inc. v. Intrastate Dis-
tribs., Inc., No. 91254647, 2023 WL 6442602 (T.T.A.B.
Sept. 30, 2023) (“Decision”). The Board found no likelihood
of confusion between IDI’s marks and Sunkist’s registered
SUNKIST marks. Id. For the reasons set forth below, we
reverse.
BACKGROUND
This trademark case concerns kisses, sunlight, and soft
drinks. The Board found that a consumer is not likely to
confuse the mark KIST with the mark SUNKIST when
used on or in connection with soft drinks because KIST is
marketed to reference a kiss while SUNKIST is marketed
to reference a sun.
The parties involved in this case are Sunkist and IDI.
Sunkist offers and licenses a variety of products and ser-
vices under the SUNKIST mark. Decision, 2023 WL
6442602, at *2. For at least ninety years, Sunkist has of-
fered SUNKIST branded beverages directly to consumers
or through licensees. Id. Sunkist owns multiple SUNKIST
trademark registrations for fresh fruits, various beverages,
and concentrates. Id. at *1. IDI is a bottling company of
company-owned brands, private label products, and some
regional brands. Id. at *3. In 2009, IDI purchased the
KIST brand from Leading Edge Flavors, Inc., dba Leading
Edge Brands (“LEB”). Id. at *2–3 & n.16. LEB used the
KIST brand for canned soda products from at least 2000 to
the 2009 purchase date. Id. at *3. LEB owned a trademark
for KIST issued in 2003 and cancelled in 2013. Id. After
purchasing the KIST brand, IDI used the KIST mark with
canned soda products until 2014 and since then with glass-
bottled nostalgia soda products and sparkling water prod-
ucts. Id.
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 3
In October 2019, IDI filed intent-to-use trademark ap-
plications to register the mark KIST in standard charac-
ters and the stylized mark both for “[s]oft drinks,
namely, sodas and sparkling water; concentrates and syr-
ups for making soft drinks.” Id. at *1 & nn.1–2. Sunkist
opposed the registration arguing likelihood of confusion be-
tween the KIST marks when used on or in connection with
the goods described in the trademark applications and its
SUNKIST registered marks.1 To support its opposition,
Sunkist submitted sixteen trademark registrations of its
SUNKIST marks including standard character, stylized,
and word and design marks. J.A. 55–56.
In September 2023, the Board issued its decision dis-
missing Sunkist’s opposition. Decision, 2023 WL 6442602,
at *1. The Board focused its analysis on the SUNKIST
standard character mark for citrus flavored soft drinks,
concentrates for making soft drinks, and citrus fruit prod-
ucts used as ingredients in soft drinks. Id. at *5. The
Board analyzed the DuPont factors used in determining
likelihood of confusion and found all the relevant factors
except similarity of the marks and actual confusion favor
likelihood of confusion. Specifically, the Board found
(1) similarity of the goods;2 (2) similarity of trade channels;
(3) conditions of sale; and (4) strength of opposer’s mark fa-
vor likelihood of confusion. Id. at *5–10. The Board,
1 Sunkist also argued dilution of its marks but on ap-
peal Sunkist does not challenge the Board’s finding as to
dilution.
2 The Board found the parties’ goods to be closely re-
lated because IDI’s soda soft drink and concentrates for
making soft drinks necessarily encompass Sunkist’s more
narrowly defined citrus flavored soft drinks and concen-
trates for making citrus flavored soft drinks. Decision,
2023 WL 6442602, at *5.
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 4
however, found similarity of the marks favors no likelihood
of confusion because the marks have different commercial
impressions and the appearance, sound, and connotation
are superficially similar. Id. at *12. According to the
Board, the commercial impressions are different because
Sunkist markets its SUNKIST marks to reference a sun,
but IDI markets its KIST marks to reference a kiss. Id.
The Board also found actual confusion favors no likelihood
of confusion because of the lack of any reported instances
of confusion. Id. at *14. In sum, although the Board found
that, among the DuPont factors it deemed relevant, a ma-
jority favor likelihood of confusion, the Board ultimately
concluded that the similarity of the marks and actual con-
fusion factors outweigh the other four factors. Id. As a
result, the Board found that the KIST marks are not likely
to cause confusion with the SUNKIST marks, id., and dis-
missed Sunkist’s opposition, id. at *18.
Sunkist timely appealed the Board’s decision.3 We
have jurisdiction under 28 U.S.C. § 1295(a)(4)(B).
D ISCUSSION
We review the Board’s legal conclusions de novo and its
underlying factual findings for substantial evidence. In re
Pacer Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003). Section
2(d) of the Lanham Act provides that the registration of a
mark may be refused if it is “likely, when used on or in con-
nection with the goods of the applicant, to cause confusion”
with another registered mark. 15 U.S.C. § 1052(d); see
QuikTrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031,
3 During oral argument, we granted Sunkist’s mo-
tion to file a supplemental appendix. Oral Arg. at 4:53–
5:07, No. 24-1212, https://oralarguments.cafc.uscourts.gov
/default.aspx?fl=24-1212_05082025.mp3; see Appellant’s
Mot. to Supplement Joint Appendix (May 6, 2025),
ECF No. 33.
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 5
1034 (Fed. Cir. 2021). “Likelihood of confusion is a ques-
tion of law, based on findings of relevant underlying facts,
namely findings under the DuPont factors.” M2 Software,
Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1381 (Fed. Cir.
2006); see In re E. I. DuPont de Nemours & Co., 476 F.2d
1357, 1361 (CCPA 1973). “We review the Board’s factual
findings on each relevant DuPont factor for substantial ev-
idence, but we review the Board’s weighing of the DuPont
factors de novo.” QuikTrip, 984 F.3d at 1034.
“The likelihood of confusion analysis considers all
DuPont factors for which there is evidence of record but
‘may focus . . . on dispositive factors, such as similarity of
the marks and relatedness of the goods.’” Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 1265 (Fed. Cir.
2002) (alteration in original) (quoting Han Beauty, Inc. v.
Alberto-Culver Co., 236 F.3d 1333, 1336 (Fed. Cir. 2001)).
“[I]f the parties’ goods are closely related, a lesser degree of
similarity between the marks may be sufficient to give rise
to a likelihood of confusion.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). “This
court resolves doubts about the likelihood of confusion
against the newcomer because the newcomer has the op-
portunity and obligation to avoid confusion with existing
marks.” Hewlett-Packard, 281 F.3d at 1265 (citing In re
Shell Oil Co., 992 F.2d 1204, 1209 (Fed. Cir. 1993)).
On appeal, Sunkist challenges the Board’s finding of no
likelihood of confusion between the SUNKIST mark and
the KIST mark.4 Appellant’s Br. 7, 8, 34.
4 We need not address Sunkist’s arguments regard-
ing trade dress because we agree that substantial evidence
does not support the Board’s findings regarding similarity
of the marks.
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 6
I
We first address the Board’s DuPont factors analysis.
The only factor really in dispute here is similarity of the
marks because actual confusion is not a dipositive factor on
its own and the Board found four other factors favor likeli-
hood of confusion. The Board rested its decision regarding
similarity of the marks on its finding of different commer-
cial impressions—IDI markets KIST to reference a kiss but
Sunkist markets SUNKIST to reference a sun. See Deci-
sion, 2023 WL 6442602, at *12. Hence, persons who en-
counter the marks would not “be likely to assume a
connection between the parties.” Coach Servs., 668 F.3d at
1368. In reaching its decision that IDI markets KIST to
reference a kiss, the Board first noted that the parties
agree that KIST is phonetically equivalent to kissed. Deci-
sion, 2023 WL 6442602, at *11. The Board then relied on
a lips image next to a KIST mark, shown below, to conclude
that IDI markets KIST to reference a kiss. Id. at *12.
Id. We find no substantial evidence support for that find-
ing.
First, the lips image is not part of the KIST mark. The
KIST mark is not a design mark that includes a lips image
that is always shown with the mark. Instead, IDI seeks to
register the KIST mark in standard character and stylized
forms. Second, not all the marketing materials with the
KIST mark include a lips image. The Board cropped the
image it relied on from a page of a marketing presentation
exhibit attached to the declaration of IDI’s CEO,
Mr. Tim Dabish. See J.A. 2095. That same exhibit also
contains other pictures and marketing materials that
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 7
notably do not contain the lips image. See, e.g., J.A. 2090,
2097. Third, there is no indication of the degree of con-
sumer exposure to the marketing materials containing the
lips image. The record contains no evidence about whether
the marketing materials with the lips image as opposed to
the other marketing materials without the lips image is
what is shown to consumers. In fact, the Dabish declara-
tion does not provide any information that the lips image
was on marketing materials actually shown to consumers
as opposed to provided only to distributors and retail
chains. See J.A. 1729–30 ¶¶ 11–12.
Fourth, the cropped image that the Board relied on is
taken from a page of the marketing presentation that em-
phasizes different sparkling water flavors, not lips or a
kiss. Indeed, the cropped image is located on the lower
right section of the page and only makes up a small portion
of the page. See J.A. 2095. The lips image is not a highlight
or focus of the marketing material. The page displays the
KIST mark on multiple bottles of different sparkling water
flavors and lists out each of the different flavors. Id. None
of the bottles include a lips image or reference a kiss. Other
marketing materials in the exhibit containing the page re-
lied on by the Board similarly emphasize flavors, as shown
in the example below.
J.A. 2097; see, e.g., J.A. 2090, 2093. The Dabish declaration
does not mention lips or a kiss. In referencing the exhibit
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 8
containing the page relied on by the Board, the Dabish dec-
laration merely states that the exhibit contains pictures of
the KIST sparkling water products and that the sparkling
water products are sold in several fruit-related flavors. See
J.A. 1729 ¶ 9. The Board overly focused on the lips image
shown in some of the marketing materials. Its finding that
IDI markets KIST to reference a kiss is not supported by
substantial evidence.
As for the Board’s finding that Sunkist markets
SUNKIST to reference the sun, we recognize that the rec-
ord has many Sunkist products with the SUNKIST design
mark containing the design that Sunkist describes in its
trademark registrations as an image of a sun with rays.
Decision, 2023 WL 6442602, at *12. But only two of the
registrations Sunkist submitted with its opposition have
that sun design. See id. at *1 & n.10, *2 n.11; J.A. 55–56.
The majority of the registrations are standard character
marks, and the Board mentioned that its focus was on the
SUNKIST standard character mark because a finding of no
likelihood of confusion with standard character marks
would mean the same finding for the other forms. See De-
cision, 2023 WL 6442602, at *5. Importantly, the record
also contains Sunkist products with the SUNKIST stand-
ard character mark without the sun design. See, e.g., J.A.
977–98, 1147, 1150, 1169, 1640, 1642, 1648, 1650. The
Board overly relied on the SUNKIST design mark in reach-
ing its conclusion.
On this record, substantial evidence does not support
the Board’s finding that similarity of the marks favors no
likelihood of confusion.
II
We next address weighing of the DuPont factors. As
previously noted, the Board found four DuPont factors in
favor of likelihood of confusion. And here, we reject the
Board’s finding regarding similarity of the marks. That
leaves only actual confusion in favor of no likelihood of
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SUNKIST GROWERS, INC. v. INTRASTATE DISTRIBUTORS, INC. 9
confusion. But the “failure to prove instances of actual con-
fusion is not dispositive against a trademark plaintiff, be-
cause actual confusion is hard to prove.” VersaTop Support
Sys., LLC v. Ga. Expo, Inc., 921 F.3d 1364, 1372 (Fed. Cir.
2019) (emphasis in original) (quoting Brookfield Commc’ns,
Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1050 (9th Cir.
1999)). We therefore conclude that IDI’s KIST marks when
used on or in connection with the goods described in IDI’s
applications are likely to cause confusion with the regis-
tered SUNKIST mark. Accordingly, we reverse the Board’s
decision to dismiss Sunkist’s opposition.
CONCLUSION
We have considered IDI’s arguments and find them un-
persuasive. For the foregoing reasons, we reverse the
Board’s decision.
REVERSED
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