The CAFC reversed the TTAB ruling involving the marks KIST and SUNKIST, emphasizing that actual confusion is not necessary to establish likelihood of confusion in trademark cases. Although the TTAB found some factors favored confusion, it dismissed the opposition due to perceived differences between the marks and a lack of reported instances of actual confusion. The CAFC criticized the TTAB's analysis on commercial impression, clarifying that the perceived association of KIST with a kiss was flawed as the lips image was not part of the mark itself.
The CAFC explained that 'failure to prove instances of actual confusion is not dispositive against a trademark plaintiff, because actual confusion is hard to prove.'
The CAFC focused on the similarity of the marks factor, stating that the TTAB's finding regarding the KIST mark's commercial impression was based on an incorrect interpretation.
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