[00:00:00] Speaker 03:
Next case for argument is 24-1212, Sunkist Growers versus Interstate Distributors.

[00:00:08] Speaker 03:
We're ready, Ms.

[00:00:09] Speaker 03:
Lindquist, whenever you are.

[00:00:10] Speaker 03:
It's OK.

[00:00:11] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
My name is Leigh Ann Lindquist.

[00:00:14] Speaker 02:
May it please the court?

[00:00:15] Speaker 02:
I'm here on behalf of Appellant Sunkist Growers, Inc.

[00:00:18] Speaker 02:
I'd like to reserve five minutes of my time for rebuttal.

[00:00:21] Speaker 02:
This is a case about soft rings.

[00:00:24] Speaker 02:
low-cost impulse purchases.

[00:00:26] Speaker 03:
Can I just cut to the chase?

[00:00:28] Speaker 03:
It's been a long morning.

[00:00:32] Speaker 03:
Let's assume that we agree with some of your major points, just hypothetically, and I speak only for myself.

[00:00:38] Speaker 03:
Are we compelled to remand it to the board

[00:00:42] Speaker 03:
for kind of a do-over or to look for more evidence or whatever?

[00:00:48] Speaker 03:
Or is your view that if we disagree with, I think, the two factors that the board relied on, there's no more to do, and we're done here?

[00:01:02] Speaker 02:
I think you should overturn the decision.

[00:01:04] Speaker 02:
I think you should reverse the decision.

[00:01:06] Speaker 02:
I don't think it needs to be remanded.

[00:01:08] Speaker 02:
With respect to Burns, I think the cases are clear.

[00:01:12] Speaker 02:
Burns is the outlier.

[00:01:14] Speaker 02:
That case did involve an application that had a design element.

[00:01:19] Speaker 02:
And all the other cases that we cite in our brief are about word marks.

[00:01:23] Speaker 02:
And that's the situation here.

[00:01:24] Speaker 02:
It's word marks.

[00:01:25] Speaker 02:
And I think you guys can just reverse the decision if you look at the two word marks.

[00:01:32] Speaker 01:
The question of weighing the DuPont factor, as I understand it, is de novo for us to do on our own, if we choose to, correct?

[00:01:41] Speaker 01:
And so I know not all the factors are necessarily weighed evenly.

[00:01:45] Speaker 01:
So this is this oversimplification, but you basically, you in quotes, won four to two at the board.

[00:01:51] Speaker 02:
Overwhelmingly, the majority were in our favor.

[00:01:54] Speaker 01:
But if we were to, we have the, under the law, we could say we're weighing four to two differently and now you, you prevail.

[00:02:03] Speaker 01:
But for sure, if we, if we came out 6-0, we can say on de novo weighing, we don't need to send it back.

[00:02:10] Speaker 01:
you prevail.

[00:02:11] Speaker 01:
Those are options that are available to us, right?

[00:02:14] Speaker 03:
Yeah, those are options.

[00:02:17] Speaker 03:
My understanding in your brief, you were arguing that the two factors the board found against you should be neutral or were you advocating that they be found in your favor?

[00:02:25] Speaker 02:
Oh, the similarity of the marks, that should be found in our favor.

[00:02:29] Speaker 02:
OK.

[00:02:30] Speaker 03:
Can I just ask you a little about the burdens of the different pieces of this?

[00:02:33] Speaker 03:
Because it's always confusing.

[00:02:35] Speaker 03:
I mean, the argument is made that the board, it was clear that there was not substantial evidence to support its findings about the sales and the use of the other mark.

[00:02:45] Speaker 03:
Whose burden, though?

[00:02:47] Speaker 03:
I mean, if this is establishing confusion, was it not your burden to establish that there was no confusion?

[00:02:54] Speaker 03:
How does that work?

[00:02:55] Speaker 02:
So there are factors under DuPont that we have to look at.

[00:03:01] Speaker 02:
We obviously do not have information about the appellee's sales.

[00:03:07] Speaker 02:
So they provide information, and then we have to review that information and make arguments about it.

[00:03:14] Speaker 02:
The burden, I don't think, is on Sunkiss to prove that there is no confusion.

[00:03:21] Speaker 02:
no actual confusion.

[00:03:23] Speaker 02:
Also, that tends to be, if you look at the cases, that tends to be the lesser weighed factor.

[00:03:29] Speaker 02:
You guys have said before that it can't be dispositive, the finding of lack of actual confusion.

[00:03:37] Speaker 02:
In a case like this, where you have low cost impulse purchases, it's unlikely that someone will come and find that they report actual confusion to the trademark owner.

[00:03:50] Speaker 03:
And what, in your view, just generally, I mean, we review a lot of board opinions, and we affirm a lot of board opinions.

[00:03:57] Speaker 03:
What led the board, in your view, to go astray?

[00:04:01] Speaker 03:
Was it just the sort of overdoing, the looking at the kiss mark, which reportedly is a trade dress?

[00:04:10] Speaker 03:
Is that what led this all to unfold against you?

[00:04:15] Speaker 02:
I don't know what they were thinking.

[00:04:19] Speaker 02:
I can make an assumption that perhaps they thought there was evidence of long use between the two marks, and there was no actual confusion.

[00:04:27] Speaker 02:
If I'm making assumptions, I think that's what they did first.

[00:04:31] Speaker 02:
And then maybe they looked at the marks to try to find dissimilarity after that, and then looked at the trade dress.

[00:04:39] Speaker 03:
How about we hear from the other side?

[00:04:41] Speaker 03:
Oh, OK.

[00:04:43] Speaker 03:
Any questions?

[00:04:48] Speaker 00:
Good morning.

[00:04:49] Speaker 00:
Good morning.

[00:04:49] Speaker 00:
We should still say good morning.

[00:04:50] Speaker 00:
May it please the court, Michael Cummings for Appellee Interstate Distributors.

[00:04:54] Speaker 03:
Can I ask you a housekeeping question first?

[00:04:57] Speaker 00:
Sure.

[00:04:57] Speaker 03:
Is the motion filed by your friend the other day?

[00:04:59] Speaker 00:
Oh, no objection.

[00:05:00] Speaker 00:
No objection.

[00:05:01] Speaker 00:
I didn't have a chance.

[00:05:01] Speaker 00:
All right.

[00:05:02] Speaker 00:
So we'll grab the motion.

[00:05:04] Speaker 03:
This is just to add the page to the subgroup.

[00:05:06] Speaker 03:
OK, granted.

[00:05:07] Speaker 00:
Thank you.

[00:05:08] Speaker 00:
In short, we obviously believe the board was correct.

[00:05:11] Speaker 00:
And we say in the weighing of the factors, the one factor that can, the one DuPont factor that can trump all the others is the dissimilarity or similarity of the mark.

[00:05:21] Speaker 00:
You could have all the rest of them go against you, but if the marks are dissimilar enough,

[00:05:26] Speaker 00:
then you can still prevail.

[00:05:28] Speaker 00:
And we think within the similarity, dissimilarity question, we think that it doesn't always, but the meaning and the commercial impression can trump over the apparent similarities in the mark.

[00:05:43] Speaker 00:
And we think that's sort of common sense.

[00:05:45] Speaker 00:
You could always, the similarity here is basically a common word, right?

[00:05:50] Speaker 00:
Kissed and sunkissed.

[00:05:51] Speaker 00:
But in normal English language, you can put two words together and radically change the meaning.

[00:05:56] Speaker 00:
I thought of a couple of you, you know, it could be a word game.

[00:05:58] Speaker 00:
The New York Times hot and hot dog.

[00:06:02] Speaker 04:
Is kiss K I S T. Well,

[00:06:08] Speaker 00:
Kissed, and I think this is, the impression is that the word kissed, like a human kiss with your lips, right?

[00:06:19] Speaker 04:
My point is that it actually feels intuitively like this matters.

[00:06:24] Speaker 04:
Ordinary language words

[00:06:27] Speaker 04:
can be deployed in all kinds of ways.

[00:06:31] Speaker 04:
When Sunkist creates its trademark, it uses sun as a word and it combines it with something that is obviously concocted.

[00:06:42] Speaker 04:
It's a new mix of letters that reminds people of things, but itself

[00:06:50] Speaker 04:
um, would convey, um, that this is not just using ordinary language, it's signaling, um, this is mine.

[00:07:00] Speaker 00:
Well, it can do that.

[00:07:02] Speaker 00:
I think you've seen, seen the trademark word is people, all the chime misspell a word, but leave it phonetically the same.

[00:07:10] Speaker 00:
Bud Light.

[00:07:11] Speaker 00:
Nobody doubts that the light is something Bud Light is a light to beer, right?

[00:07:17] Speaker 00:
And of course, people are motivated to avoid generic spellings of words because you couldn't render your mark descriptive or worse.

[00:07:26] Speaker 00:
Generic can be the kiss of death.

[00:07:29] Speaker 00:
So it is common, I think, in trademark.

[00:07:31] Speaker 00:
When you're looking, when someone says the word NU in a trademark, I'm pretty much thinking it's the new and improved, right?

[00:07:38] Speaker 00:
Presumptively, not always.

[00:07:40] Speaker 00:
In any of the millions of misspellings you see in trademarks,

[00:07:44] Speaker 00:
There was just a widespread practice of misspelling the word, leaving it phonetically the same so that you avoid being descriptive or, worse, generic.

[00:07:55] Speaker 00:
And we think here, so.

[00:07:57] Speaker 00:
And what does that have to do with the similarity inquiry?

[00:08:00] Speaker 00:
Because it does go to the meaning.

[00:08:02] Speaker 00:
The court found a difference in meaning.

[00:08:04] Speaker 00:
In the similitude, kiss, meaning like a human kiss with lips, or sun kiss, meaning touched by the sun, often sun rays.

[00:08:13] Speaker 00:
It found that.

[00:08:15] Speaker 00:
The word kiss, K-I-S-T, evokes that, evokes those two meanings.

[00:08:21] Speaker 00:
And those meanings are different.

[00:08:23] Speaker 00:
So putting those two words together, you create a very different word.

[00:08:27] Speaker 00:
They have a very different meaning than when you have them together.

[00:08:29] Speaker 00:
And there was evidence for that in the dictionary.

[00:08:31] Speaker 00:
And I think the great way to practice in the trademark world confirms that a misspelled word like that with the exact same phonetic pronunciation

[00:08:42] Speaker 00:
would evoke the actual English word that it's meant to.

[00:08:47] Speaker 03:
But doesn't this record, even accepting your proposition, and again, I know there are legal questions, but let's assume a substantial evidence test.

[00:08:57] Speaker 03:
The board relied heavily on extracting a kiss mark.

[00:09:02] Speaker 03:
There is no indication in the record that that was shown to anyone, that that was used, how often it was used.

[00:09:11] Speaker 03:
There are loads of pictures in which there is no kiss.

[00:09:14] Speaker 03:
There's loads of pictures in which it's

[00:09:16] Speaker 03:
has only a small meaning.

[00:09:18] Speaker 03:
And then the same is true of the sun.

[00:09:20] Speaker 03:
There's plenty of pictures of sun kissed not even having the sun, and that can have different meanings, but just dealing with flavor.

[00:09:29] Speaker 03:
So just because we don't have, there's no evidence in the record that I could discern that this kiss mark, which the board seems to think stood out,

[00:09:40] Speaker 03:
was in any of the distributions to the customers.

[00:09:43] Speaker 03:
Nobody's quantified whether that.

[00:09:45] Speaker 00:
Well, we didn't have it in the board.

[00:09:46] Speaker 00:
And actually, Honor, I hate to do this, but I kind of agree with you with respect to just the kiss mark.

[00:09:51] Speaker 00:
But I think very different with the sun kiss mark.

[00:09:54] Speaker 01:
I want to make sure we're talking about the same thing, just to be clear.

[00:09:57] Speaker 01:
I think my colleague's talking about the red lips.

[00:09:59] Speaker 00:
The red lips.

[00:10:00] Speaker 01:
I'm agreeing with.

[00:10:01] Speaker 01:
So you're agreeing there's no actual evidence in our record of the red lip mark being used by your client?

[00:10:08] Speaker 00:
No, there is definite.

[00:10:10] Speaker 00:
Let me make the distinction here of the overall distinction about the use of trade dress.

[00:10:14] Speaker 00:
I think it matters here, Your Honor.

[00:10:17] Speaker 00:
The overall use of trade dress, and that's counsel's point that the case law says you can never do it.

[00:10:22] Speaker 00:
You can never use trade dress in asserting the meaning of a word mark.

[00:10:27] Speaker 01:
that i i i we may be interested legal question but i don't know if there are those are not answers that fact that there is no evidence i don't think sorry may i just ask that i think we're having the same concern in this record before us that i'm being asked review for substantial evidence

[00:10:44] Speaker 01:
What is the substantial evidence that your client ever used as part of its trade dress, the red lips, the lipstick that actually went to the consumers?

[00:10:52] Speaker 00:
I think we have that in declarations from our clients.

[00:10:56] Speaker 00:
Give me a minute.

[00:10:56] Speaker 00:
I'll try to dig it up.

[00:10:58] Speaker 04:
I thought the issue was that you did use it in sending something to distributors, but there's no reason to think that it was no evidence to suggest that it was used to the consumers.

[00:11:07] Speaker 04:
Right.

[00:11:08] Speaker 00:
In other words, distributor packaging, when they

[00:11:11] Speaker 00:
When you put it in your store, there's a whole packaging display that comes with it.

[00:11:17] Speaker 04:
And there's evidence that the lips are on the packaging that the consumers see.

[00:11:24] Speaker 00:
Yes, there is evidence in there.

[00:11:26] Speaker 04:
OK, well, we can check that.

[00:11:27] Speaker 00:
OK, yeah.

[00:11:29] Speaker 00:
And so there is evidence.

[00:11:31] Speaker 00:
And what that evidence does, the evidence, particularly on the sun-kissed side, confirms

[00:11:38] Speaker 00:
confirms and strengthens the dictionary definition and the impression.

[00:11:43] Speaker 03:
So we're moving just to the sun thing.

[00:11:46] Speaker 03:
So I mean, I looked at the record.

[00:11:48] Speaker 03:
It didn't seem to me that Mr. Davish's declaration or others really established that this stuff was sent down to the consumers, or even the quantity, because it's clear from all the diagrams we have that some of your products have this on it in some packaging, and others did not.

[00:12:04] Speaker 03:
So I'm just telling you.

[00:12:06] Speaker 03:
I'm giving you a chance to respond, but I don't see where the evidence in the record would be substantial.

[00:12:13] Speaker 03:
I mean, that there's any substantial evidence to support the conclusion.

[00:12:17] Speaker 00:
So I'm going to try to respond.

[00:12:20] Speaker 00:
But I would respond to that, that it's the registrants' use here that is the most important and what would also the board relied on.

[00:12:32] Speaker 03:
Because the mark itself doesn't have the kiss.

[00:12:36] Speaker 00:
No, and that's the whole point.

[00:12:37] Speaker 00:
That's why the general rule is that you don't use trade dress when dealing with a word mark.

[00:12:47] Speaker 03:
OK, you want to turn to the sun, though, because I think you thought that there was no better.

[00:12:49] Speaker 00:
Well, I think it's more than the sun.

[00:12:50] Speaker 00:
It's the whole things around the idea of being sun kissed, which is citrus fruit and the colors of the sun, predominantly oranges and some yellows, and citrus fruit

[00:13:02] Speaker 00:
And people picking, you know, on a sunny day, people picking citrus fruit off of trees, you have overwhelming evidence for decades of associating, because it's an initial association with citrus fruit.

[00:13:15] Speaker 00:
And there's this, you know, it grows in sunny climates.

[00:13:19] Speaker 00:
You have this association, citrus fruit is something that, and actually the appellant referred to in their own brief that

[00:13:27] Speaker 00:
citrus fruits is something that is kissed by the sun.

[00:13:30] Speaker 00:
It grows in sunny climes.

[00:13:32] Speaker 00:
They've had, essentially, admitted that in the dictionary definitions.

[00:13:35] Speaker 00:
So you have these overwhelming decades.

[00:13:37] Speaker 00:
And what doesn't you not?

[00:13:38] Speaker 03:
But didn't you just give away your case?

[00:13:40] Speaker 03:
Because that is their argument.

[00:13:42] Speaker 00:
But their argument gives it away for them, Your Honor.

[00:13:44] Speaker 00:
That's what I'm asserting.

[00:13:46] Speaker 00:
No, let me finish.

[00:13:47] Speaker 00:
Let me respond.

[00:13:48] Speaker 03:
Because I think that one of their arguments is kissed, you kind of said, kissed by the sun.

[00:13:55] Speaker 03:
And we're talking about fruit flavors.

[00:13:58] Speaker 03:
The commonality here is they're both distributing these sodas and these drinks that are fruit flavored.

[00:14:03] Speaker 03:
So go ahead.

[00:14:06] Speaker 00:
That's not the commonality of the means of the marks or the commercial impressions of the marks.

[00:14:11] Speaker 00:
It's not fruit.

[00:14:12] Speaker 00:
It's not.

[00:14:14] Speaker 00:
The second that it's fruit, it's primarily citrus fruit, which is a sun-related fruit.

[00:14:21] Speaker 00:
And so it's

[00:14:24] Speaker 00:
You see lots of big orange circles, presumably the sun, and lots of their packaging.

[00:14:29] Speaker 03:
Well, so in your mark, kissed, who is kissing what?

[00:14:34] Speaker 03:
Is it also a kiss from the sun?

[00:14:37] Speaker 00:
I mean, if it's about... Well, actually, when you say that, we would submit that when you say the word kissed by itself, kissed by the sun is pretty much the last thing that comes to your mind.

[00:14:47] Speaker 00:
If I go say, oh, I bet you that girl's been kissed,

[00:14:51] Speaker 00:
But the products are identical.

[00:14:53] Speaker 03:
I mean, the products are fruit.

[00:14:55] Speaker 03:
So you're saying Sunkist.

[00:14:57] Speaker 00:
Well, the products are sodas.

[00:14:59] Speaker 03:
Yeah, but they're fruit flavored.

[00:15:00] Speaker 00:
Some of them are fruit flavors.

[00:15:02] Speaker 03:
Fruit flavors.

[00:15:02] Speaker 00:
Some of them, yes.

[00:15:04] Speaker 00:
Not all of them.

[00:15:05] Speaker 00:
Certainly not all of them.

[00:15:06] Speaker 00:
I could not say that they're all fruit flavors.

[00:15:08] Speaker 00:
They have fruit flavors, but they're not all fruit flavors.

[00:15:11] Speaker 03:
Do we have any quantity in the record about what fruit flavored and non-fruit flavored uses have been put?

[00:15:19] Speaker 00:
No, I don't think we'd have the, we don't have the exact breakdown in numbers.

[00:15:24] Speaker 00:
You can see the spectrum of flavors that we provide.

[00:15:30] Speaker 00:
But again, it's the differences in the marks.

[00:15:33] Speaker 00:
The similarity of the marks is the main thing.

[00:15:37] Speaker 00:
And putting two words together changes the meaning.

[00:15:42] Speaker 00:
That change is not only confirmed by the dictionary, and I think normal person's understandings of them.

[00:15:48] Speaker 00:
But it is the registering itself that has driven home the meaning of sun kissed being different from the normal use of kissed by itself, which is a human action.

[00:16:04] Speaker 00:
They have brought in the whole notion of being out in the sun with it, which is different than

[00:16:11] Speaker 00:
human people kissing, even if it's a little girl kissing her puppy, right?

[00:16:14] Speaker 00:
Those are two very different human experiences, actions, meanings.

[00:16:20] Speaker 00:
And that can trump, and it has to go, and certainly you want to put it in another path, it has to do with fame, because they've gained fame in this way of associating their product with sun-related things, either the sun itself, sun colors, or sun-related fruit, which is citrus fruit.

[00:16:40] Speaker 00:
They established that fame.

[00:16:42] Speaker 00:
They've taught, to the extent that they've almost like they've taught their market what Sunkist means.

[00:16:51] Speaker 00:
You know?

[00:16:53] Speaker 03:
OK.

[00:16:53] Speaker 00:
Thank you.

[00:16:53] Speaker 03:
You're welcome.

[00:16:58] Speaker 03:
Almost.

[00:16:59] Speaker 03:
Please.

[00:17:03] Speaker 03:
And why don't you address his final point, which is the main point in this, is that they're just different words.

[00:17:11] Speaker 03:
And son has to be given some recognition.

[00:17:15] Speaker 03:
And it's definitely not included in their mark, which is just kiss.

[00:17:18] Speaker 02:
That's right.

[00:17:19] Speaker 02:
So I want to address just a couple of things very quickly.

[00:17:23] Speaker 02:
There's no correct pronunciation of a mark.

[00:17:25] Speaker 02:
That's incredibly well established.

[00:17:27] Speaker 02:
So arguments about K-I-S-T being kissed or

[00:17:33] Speaker 02:
I just want to make sure that you understand that point.

[00:17:35] Speaker 02:
There's no correct pronunciation.

[00:17:37] Speaker 02:
The marks do sound alike, but I want to make that point here.

[00:17:40] Speaker 03:
Meaning that kissed isn't kissed, K-I-S-S-E-D?

[00:17:45] Speaker 02:
I think it is pronounced that way.

[00:17:47] Speaker 02:
But again, there's no correct pronunciation, right?

[00:17:51] Speaker 02:
And then there are other definitions for the word kiss.

[00:17:54] Speaker 02:
When you're looking in the dictionary, and one of them is to touch someone gently or lightly.

[00:17:59] Speaker 02:
So the board, again, just selected, in my opinion, random definitions because they didn't look at the goods, which they're required to do when they're looking at the marks to determine connotation.

[00:18:09] Speaker 03:
But again, his final point, which is the main point of this, is that son kissed is different than kissed.

[00:18:15] Speaker 03:
They're two different words.

[00:18:19] Speaker 02:
But the test is not identity, right?

[00:18:23] Speaker 02:
It's similarity.

[00:18:24] Speaker 02:
And the similarity can be as to sound, pronunciation, or connotation.

[00:18:29] Speaker 02:
And we are of the opinion that two marks are similar in sound, they're similar in appearance, and they're similar in connotation because they're both.

[00:18:38] Speaker 04:
With respect to these goods.

[00:18:40] Speaker 02:
With respect to these goods.

[00:18:42] Speaker 02:
And for example, one way you have to look at this in respect to the goods is kiss applied to a rock band has a totally different meaning than kiss is applied to a soft drink.

[00:18:54] Speaker 02:
You have to look at the goods.

[00:18:56] Speaker 02:
And the board totally failed to do that.

[00:18:58] Speaker 02:
And then when they looked at the trade dress, they didn't look at the trade dress.

[00:19:01] Speaker 02:
They just looked at marketing.

[00:19:06] Speaker 02:
Also, our goods are not citrus fruits.

[00:19:08] Speaker 02:
They're soft drinks, right?

[00:19:10] Speaker 02:
I think that's an important point here.

[00:19:13] Speaker 02:
And last, they do say only that they sell fruit flavored waters and only fruit flavored soda.

[00:19:23] Speaker 02:
They say this at 1729.

[00:19:26] Speaker 02:
There's no indication that they sell

[00:19:28] Speaker 02:
just unflavored water.

[00:19:29] Speaker 02:
Everything's about flavor.

[00:19:30] Speaker 02:
Their marketing's about flavor.

[00:19:32] Speaker 02:
You see that in different places, too.

[00:19:35] Speaker 03:
Thank you.

[00:19:36] Speaker 03:
We thank both sides.

[00:19:36] Speaker 03:
The case is submitted.