When “Kist” Meets “Sunkist”: Federal Circuit Reverses TTAB in Key Beverage Trademark Dispute

By Jay Kotzker

On July 23, 2025, the U.S. Court of Appeals for the Federal Circuit issued a decision that will resonate across the beverage industry and beyond, reversing the Trademark Trial and Appeal Board’s (TTAB) dismissal of Sunkist Growers’ opposition to “KIST” trademark applications filed by Intrastate Distributors, Inc. (Sunkist Growers, Inc. v. Intrastate Distributors, Inc., No. 24-1212). [ Full Decision:  https://www.cafc.uscourts.gov/opinions-orders/24-1212.OPINION.7-23-2025_2548601.pdf ]

The Backstory
Sunkist, a century-old citrus powerhouse with multiple SUNKIST registrations for fruits, beverages, and concentrates, opposed IDI’s applications to register “KIST” in both standard character and stylized form for sodas, sparkling waters, and related products.

The TTAB found that most DuPont factors favored Sunkist—goods were closely related, trade channels overlapped, sales conditions were similar, and SUNKIST was a strong mark. But the Board concluded there was no likelihood of confusion, pointing to differences in “commercial impression”: Sunkist supposedly evoked the sun, while KIST was marketed as a “kiss.” The Board leaned heavily on a cropped marketing image of KIST with a lips graphic, and the absence of proven actual consumer confusion.

Why the Federal Circuit Reversed
The Federal Circuit found that the TTAB overemphasized the lips image and the “kiss” theme without substantial evidence. The court noted:

• The lips graphic was not part of the registered mark.
• Not all KIST marketing used it, and there was no proof consumers even saw it.
• SUNKIST’s brand was often presented in standard character form without the sun design, undercutting the “sun” versus “kiss” dichotomy.

With four DuPont factors already favoring confusion, and similarity of the marks improperly discounted, the court found that KIST’s use on the applied-for goods was likely to cause confusion with SUNKIST. It reversed, siding with Sunkist.

Trademark Lessons for Consumer and Beverage Brands

1. Phonetic similarity carries weight. Even if two marks have different “themes” or imagery, shared pronunciation—especially with only minor visual differences—can be decisive when products overlap.
2. Don’t rely too heavily on marketing context. Courts focus on the mark as registered and as it appears across uses, not on a single promotional execution. Occasional thematic differences may not outweigh overall similarity.
3. Strong marks get broad protection. SUNKIST’s long history and market recognition meant that only modest similarity was needed to tip the scales toward confusion.
4. Actual confusion isn’t required. A lack of reported incidents doesn’t save a newcomer, especially when goods are closely related.
5. New entrants have a higher burden to avoid confusion. As the Federal Circuit reminded, doubts are resolved against the junior user who has the opportunity to choose a more distinct brand.

Broader Implications
For beverage brands—where flavor lines, packaging, and co-branded promotions blur category boundaries—this case reinforces the risk of adopting marks that are close in sight, sound, or meaning to entrenched players. It also signals that nostalgia or “retro” branding strategies (like KIST’s glass-bottle sodas) don’t insulate a mark from confusion claims when overlap in channels and product types exists.

For all consumer brands, the opinion is a reminder to consider not just your intended “story” for a mark, but how it will be perceived in the marketplace—stripped of marketing gloss—next to existing brands. Clearance searches should weigh phonetic, visual, and conceptual similarity, not just thematic differences.

How Holon Law Can Help
At Holon Law, we guide consumer brands in the beverage sector and beyond through the full spectrum of trademark issues—from clearance and registration to enforcement and litigation. We understand the competitive pressures and crowded shelves these brands face, and we help clients choose, protect, and defend marks that stand out while avoiding costly disputes. Whether you’re launching a new craft soda, expanding a heritage brand, or entering new product categories, we combine deep trademark expertise with practical, business-focused strategies to safeguard your brand equity and keep you ahead of the competition.