The registration of a trademark may be refused if it is “likely, when used on or in connection 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, 1034 (Fed. Cir. 2021). “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 opportunity 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)).

The Federal Circuit recently resurrected Sunkist Growers's opposition to registration of the mark KIST for soft drinks. Sunkist Growers, Inc. v. Intrastate Distributors, Inc., No. 2024-1212, __ F.4th __ (Fed. Cir. July 23, 2025). Sunkist had asserted likelihood of confusion with its mark SUNKIST for fresh fruits and various beverages and concentrates, and the Federal Circuit reversed the TTAB's dismissal of Sunkist's opposition because substantial evidence did not support finding that similarity of the marks favors no likelihood of confusion. 

The TTAB had found that the similarity of the goods, the similarity of the trade channels, the conditions of sale, and the strength of Sunkist's mark favored a finding of likelihood of confusion—but that the similarity of the marks and the lack of evidence of actual confusion were dispositive in finding no likelihood of confusion. The TTAB had found that the SUNKIST mark and the KIST mark created different commercial impressions. Namely, that KIST was marketed to reference a "kiss" but SUNKIST was marketed to reference a "sun"; such that "a person who encounters the marks would not "be likely to assume a connection between the parties." 

But the Federal Circuit found that the TTAB had "overly focused on the lips image shown in some of the [KIST] marketing materials" because lips image is not part of the KIST mark, and "not all the marketing materials with the KIST mark include a lips image." Moreover, the marketing materials of record emphasized "different sparkling water flavors." And there was "no indication of the degree of consumer exposure to the marketing materials containing the lips image." 

With respect SUNKIST marketing in reference to the sun, the Federal Circuit noted that only two of Sunkist's pleaded registrations include a sun design, and the other registrations were for standard character marks. "Importantly, the record also contains Sunkist products with the SUNKIST standard character mark without the sun design."

Thus, the Federal Circuit concluded that "substantial evidence does not support the Board's finding that similarity of the marks favors no likelihood of confusion." 

Regarding the lack of actual confusion, the Court noted that the “failure to prove instances of actual confusion is not dispositive against a trademark plaintiff, because actual confusion is hard to prove,” citing 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)).