Sunkist vs KIST: How Courts Weigh Likelihood of Confusion Factors

A familiar pair of parties—Sunkist Growers, Inc. and Intrastate Distributors, Inc. (IDI)—recently produced two opinions that every brand owner should understand. In September 2023, the TTAB dismissed Sunkist’s opposition to IDI’s KIST applications for soft drinks. In July 2025, the Federal Circuit reversed. The result turned on how each tribunal evaluated the same record under the same du Pont framework, especially two dispositive factors: similarity of the marks and similarity of the goods. The decisions illustrate how fact‑finding, evidentiary focus, and the standard of review can swing an outcome.

Introduction to the Likelihood of Confusion Issues

Sunkist owns multiple registrations for SUNKIST, including standard character marks for citrus‑flavored soft drinks and concentrates. IDI applied to register KIST in standard characters and a stylized KIST for sodas and sparkling water, along with concentrates and syrups for making soft drinks. Sunkist opposed on likelihood of confusion.

Similarity of the Goods: Legally Identical in Part (and why that matters)

On the goods factor, there was no mystery. The Trademark Trial and Appeal Board (TTAB) held that IDI’s broadly worded “soft drinks” and “concentrates” necessarily encompassed Sunkist’s narrower “citrus‑flavored soft drinks” and their concentrates. When goods are legally identical in part, the law presumes overlapping trade channels and purchasers. The Board also treated soft drinks as ordinary, often low‑priced purchases that are susceptible to impulse buying. Those findings increase the risk of confusion and, as a practical matter, lessen the amount of mark‑similarity needed to find a likelihood of confusion.

The Federal Circuit did not disturb any of that. In fact, the court emphasized the settled principle that when goods are closely related or overlapping, a lesser degree of mark similarity suffices. That theme becomes decisive once you turn to the first du Pont factor.

Similarity of the Trademarks: Where the Paths Diverged

The TTAB’s dismissal rose and fell on its view that SUNKIST and KIST convey different commercial impressions. The Board acknowledged some visual and phonetic overlap—both contain KIST and KIST can be pronounced like “kissed”—but it found the connotations divergent. In the Board’s view, SUNKIST evoked “sun‑kissed” fruit and sunshine, while KIST evoked a “kiss.” To underscore that distinction, the Board looked to examples of marketplace use: Sunkist packaging and ads with sun imagery, and an IDI marketing slide that paired KIST with a lips graphic. On that record, the Board concluded the difference in meaning and commercial impression outweighed the other pro‑confusion factors.

The Federal Circuit disagreed and reversed. The court’s central holding was evidentiary: substantial evidence did not support the Board’s “kiss vs. sun” divide. First, KIST was sought in standard characters (and a separate stylized word mark), so a transient lips image found on a cropped marketing slide was not part of the mark itself. Second, the record did not show how often consumers actually encountered the lips image compared with ordinary KIST labels and point‑of‑sale materials. Third, the Board over‑relied on Sunkist’s sun‑design trade dress even though the likelihood‑of‑confusion analysis was centered on SUNKIST in standard characters and the record also showed SUNKIST in plain word form. When those missteps are stripped away, the remaining overlap—SUNKIST vs. KIST, with identical goods and ordinary purchasers—made the first factor at least neutral to favoring confusion rather than cutting decisively against it.

Actual Confusion: Absence is Not Dispositive

Both decisions discussed an absence of reported actual confusion despite overlapping sales. The Board gave that some weight against confusion because the parties’ products had coexisted in overlapping regions and retailers. The Federal Circuit cautioned that the absence of actual confusion evidence rarely carries the day, especially with consumer goods, and cannot overcome multiple pro‑confusion factors where the record otherwise points to likely confusion.

The Standard of Review Matters

Two layers of review explain why the same record produced different outcomes. The Federal Circuit reviews the Board’s underlying factual findings for substantial evidence, but it reviews the overall weighing of the du Pont factors de novo. Here, the court held the Board’s key factual premise about the parties’ commercial impressions lacked substantial evidence, then re‑weighed the factors in light of goods identity, channels, purchaser care, and SUNKIST’s marketplace strength. Once the similarity‑of‑marks factor was corrected, the balance favored Sunkist.

Practical Lessons for Brand Owners and Trademark Attorneys

• Treat the “goods” factor as a force multiplier. If your identification is broad enough to overlap with a senior registrant’s narrower goods, expect the channels and purchaser factors to follow suit, and plan your mark‑similarity argument accordingly. Conversely, if you are defending, tailor your identifications where you can and build a clean record on differences in trade channels, price points, and purchasing context.
• Keep standard‑character law front and center. For word marks, the similarity analysis must focus on the words and their ordinary presentations. Trade dress can illuminate commercial impression, but it cannot substitute for the mark. If your argument depends on imagery or packaging that is not part of the applied‑for mark, develop evidence of consumer exposure and consistency over time; otherwise, that material is likely to be discounted on appeal.
• Document what consumers actually see. The Federal Circuit faulted the reliance on a single cropped slide with a lips icon. A better record would show representative packaging, shelf photos, retailer pages, and advertising across geographies and time, with circulation and impression data where available. If you want a connotation finding to stick, show the tribunal the real marketplace at scale.
• Don’t overplay “no actual confusion.” Soda is a classic fast‑moving consumer good. Without controlled surveys or a robust complaint‑tracking program, silence rarely proves much. Use co‑existence carefully and always pair it with evidence that explains why confusion opportunities have been few or unlikely.
• Account for strength without overreaching. The Board credited SUNKIST’s marketplace strength in fruit‑flavored sodas, which amplified the risk of confusion. At the same time, overclaiming across all goods or invoking dated promotions without reach metrics can blunt the impact. Build current, product‑specific proof: sales, distribution, share, and brand‑awareness data tied to the goods at issue.

What this Means for Your Next Likelihood of Confusion Trademark Matter

If you’re clearing a trademark for a beverage, food, or other consumer product, pay close attention to overlapping identifications and assume that even modest mark similarity may be enough to trigger a trademark refusal or opposition. If you’re defending a close call at the TTAB, ground your distinct‑impression argument in the words of the mark and in repeatable, consumer‑facing use—not in a one‑off campaign image. And if you lose at the TTAB on the first factor, remember that the Federal Circuit will scrutinize whether the Board’s evidentiary inferences are truly supported and may re‑weigh the factors.

If you’re evaluating a new brand or facing a trademark refusal or trademark opposition, we can help assess the du Pont landscape, shape the evidentiary record, and position your case for success at the TTAB and on appeal.  Contact our trademark attorneys today to discuss your trademark matter.  We make every effort to respond to all inquiries within one business day.