When 100 Years of Use is Not Enough
Patent – Patently-O 2025-07-25
Summary:
by Dennis Crouch
In July 2025, the Federal Circuit reversed a Trademark Trial and Appeal Board (TTAB) dismissal of a likelihood of confusion opposition in Sunkist Growers, Inc. v. Intrastate Distributors, Inc., No. 24-1212 (Fed. Cir. July 23, 2025), finding that substantial evidence did not support the Board's conclusion that the marks SUNKIST and KIST have sufficiently different commercial impressions to avoid consumer confusion. The complete reversal appears to mean that KIST will be blocked from registration.
I am familiar with the SUNKIST brand based upon its popularity rise as part of my sugary childhood in the 1980s. When I started reading the decision, I thought KIST must be a new upstart, but then I saw that their bottles include the year "1929." As it turns out, both KIST and SUNKIST have surprisingly robust heritage -- both dating back about 100 years. And both with with trademark registrations for soft drinks and soda syrups dating from the 1920s.
The KIST brand changed multiple times over the decades and ultimately, their old registrations were all abandoned in the 2000s for failing to file the required statements of use.