The Federal Circuit’s July 23, 2025 decision in Sunkist Growers, Inc. v. Intrastate Distributors, Inc., No. 24-1212, offers a crisp reminder that the TTAB cannot lean too heavily on isolated snippets of marketing material to infer the “commercial impression” of a trademark. In reversing the Board’s dismissal of Sunkist’s opposition to the KIST word mark and the stylized KIST mark, the Federal Circuit held that no substantial evidence supported the Board’s finding that KIST conveys a “kiss” connotation distinct from the SUNKIST brand.
For trademark litigators, the decision reads as a cautionary tale: when the Board’s analysis hinges on the supposed difference in commercial impressions, one wayward page of a sales deck will not carry the day. And for in-house legal teams—particularly those entrusted with legacy consumer brands—this case reinforces that even century-old marks can find themselves in surprisingly modern confusion disputes.
As Charles Gideon Korrell likes to point out, TTAB appeals often turn on evidentiary nuance rather than grand doctrinal shifts. This case is an excellent example.
100 Years of Soda History—and a Fresh Legal Clash
Both SUNKIST and KIST boast remarkably long commercial histories. Sunkist’s beverage branding dates back at least to the 1930s; the KIST brand originated around 1929. Yet despite this parallel longevity, their histories diverged in critical ways.
According to the record, Sunkist has continuously sold SUNKIST beverages or licensed them for nearly a century, supported by a robust lineup of trademark registrations. By contrast, the KIST brand passed through several hands and experienced long gaps in use, and its earlier registrations were abandoned in the early 2000s. IDI, the current owner, acquired the brand in 2009 and eventually filed two intent-to-use applications in 2019.
Under the Lanham Act, once a mark is formally abandoned, the registrant cannot reclaim the original priority date merely by resuming use. That meant IDI—despite the nostalgic aura surrounding KIST—stood in the shoes of a newcomer for purposes of likelihood of confusion. And as the Federal Circuit has emphasized in cases like Hewlett-Packard Co. v. Packard Press, Inc., newcomers bear the “opportunity and obligation” to adopt marks that avoid confusion with established brands.
Sunkist opposed the KIST applications at the TTAB, presenting 16 SUNKIST registrations and substantial evidence of overlapping goods and channels of trade. The Board agreed that nearly all the DuPont factors favored Sunkist—except for similarity of the marks and the lack of actual confusion. Because it treated those two factors as dispositive, the Board dismissed the opposition.
And that’s where the Federal Circuit stepped in.
When Commercial Impression Goes Off the Rails
The Board’s core rationale was simple enough:
- KIST supposedly evokes kissed,
- SUNKIST supposedly evokes the sun,
- therefore, consumers would not assume a relationship between the two.
This conclusion rested heavily—almost exclusively—on a single cropped image from a marketing presentation showing a small lips graphic positioned near a KIST logo.
The Federal Circuit was unpersuaded.
Here is why the Board’s finding fell apart under substantial-evidence review:
1. The lips weren’t part of the trademark.
IDI applied to register standard character and simple stylized marks—not a design mark with lips. That alone should have raised a red flag: trademark “commercial impression” must arise from the mark itself, not from optional adjacent artwork scattered through marketing collateral.
2. The use of the lips graphic was sporadic and unsupported by the record.
The cropped image came from a page in a larger presentation focused on sparkling water flavors, not romantic imagery. Many materials in the same exhibit showed no lips at all. And critically, there was no evidence that consumers ever saw the lips graphic, as opposed to internal distributors or retail buyers.
As Charles Gideon Korrell notes, trademark law is skeptical of “Schrödinger’s marketing”—materials that might or might not have ever reached the consumer but are nevertheless used to define consumer perception.
3. Sunkist’s own “sun” imagery was overemphasized.
Only two of Sunkist’s numerous registrations included a sunburst design. The Board had purported to focus on the standard character SUNKIST mark, but its analysis seemed to treat the sun imagery as universally present—a mismatch that undermined its conclusion.
4. The Board over-indexed on connotation despite acknowledging that other DuPont factors strongly favored confusion.
The goods were commercially identical (soft drinks, syrups, sparkling water). The trade channels overlapped. Sunkist’s mark was strong. And as the Federal Circuit observed, when goods are closely related, a lesser degree of similarity between the marks is needed for confusion to arise.
See Coach Services v. Triumph Learning.
In short, the Board’s determination rested on an evidentiary reed too thin to support the weight of its conclusion. The Federal Circuit found no substantial evidence that KIST’s commercial impression meaningfully diverged from SUNKIST’s.
Re-Weighing the DuPont Factors
Once the similarity-of-marks finding collapsed, the rest of the analysis became straightforward.
The Court emphasized that:
- Four DuPont factors clearly favored Sunkist: similarity of goods, similarity of trade channels, conditions of sale (impulse purchases), and strength of the SUNKIST mark.
- Only actual confusion favored IDI, but that factor carries little weight when there is limited evidence of market interaction or when the absence of proof is likely attributable to limited exposure.
As the Court reminded us, quoting VersaTop Support Systems v. Georgia Expo: the failure to prove actual confusion is not dispositive, because such evidence is notoriously difficult to obtain.
With IDI treated as a newcomer entering Sunkist’s well-established space, and with the majority of factors pointing toward confusion, the Federal Circuit reversed the TTAB’s dismissal outright rather than remanding for further consideration.
As Charles Gideon Korrell often emphasizes in brand-strategy discussions, a strong incumbent mark tends to enjoy a procedural “home-court advantage” under DuPont: doubts are resolved against the newcomer.
The Federal Circuit leaned directly on that principle here, citing both Hewlett-Packard and Shell Oil.
What This Means for Trademark Practice
1. Evidence of commercial impression must reflect broad consumer exposure.
A single stylized lips icon tucked away in a sales deck is not enough to define a mark’s connotation. Applicants and opponents alike should build evidentiary records around materials that actually meet consumers’ eyes.
2. Standard character marks should be analyzed as such.
The TTAB’s improper reliance on sun imagery for SUNKIST serves as a reminder: the scope of a standard character mark is broad, and courts expect the Board to analyze similarity accordingly.
3. Abandonment erases history—no matter how nostalgic the brand.
KIST’s legacy did not confer priority. Once abandoned, resurrected marks must operate in the shadow of existing registrations unless they can show a clear path free of confusion.
4. The “newcomer principle” continues to matter.
The Federal Circuit’s invocation of the newcomer doctrine reinforces that in tightly packed consumer markets—like beverages—even modest phonetic overlap can block registration.
5. The decision may foreclose KIST’s attempt to re-enter the beverage trademark landscape.
Because the Federal Circuit reversed outright (rather than remanding), this is not a do-over. Unless IDI shifts its branding strategy or narrows its goods, the door may be closed for its KIST marks.
As Charles Gideon Korrell observes, TTAB appeals rarely produce sweeping doctrinal change—but they often generate useful reminders for practitioners about the evidentiary standards that win or lose cases.