Pom Wonderful Ltd. Liab. Co. v. Hubbard - 775 F.3d 1118 (9th Cir. 2014)

Rule:

The similarity-of-marks factor is always important in determining whether a likelihood of confusion exists because when marks are entirely dissimilar, there is no likelihood of confusion. Accordingly, as the similarities between two marks increase, so too does the likelihood of confusion. The following axioms define and delimit the similarity analysis: (1) similarity is best evaluated by appearance, sound, and meaning; (2) marks should be considered in their entirety and as they appear in the marketplace; and (3) similarities weigh more heavily than differences. 

Facts:

Pom Wonderful—the owner of the "POM" standard character mark—brought a trademark infringement claim against Defendant-Appellee Robert G. Hubbard, Jr., d/b/a Portland Bottling Company and Pur Beverages ("Pur") to stop Pur from using the word "pŏm" on its pomegranate-flavored energy drink. The district court denied Pom Wonderful's motion, finding that Pom Wonderful is unlikely to demonstrate a likelihood of consumer confusion and therefore is unlikely to succeed on the merits of its trademark infringement claim.

Issue:

Did the district court err in finding that Pom Wonderful was unlikely to demonstrate a likelihood of consumer confusion?

Answer:

Yes

Conclusion:

The court held that there was clear error to find that Pom Wonderful was unlikely to demonstrate a likelihood of consumer confusion because the district court incorrectly found that the similarity of marks, marketing channel convergence, actual confusion, Hubbard’s intent, and product expansion factors weighed against the trademark owner since, inter alia, each mark was comprised of the same three letters presented in the same order, and "POM" and "pŏm" meant precisely the same thing. Pom Wonderful’s exclusive right to use the "POM" mark covered all design variations of the word because "POM" was registered as a standard character mark.