Pom Wonderful LLC sued Pur Beverages claiming Pur Beverages’ use of the trademark PUR POM for an energy drink infringed Pom Wonderful’s rights in its registered POM trademark for beverages.  The district court denied Pom Wonderful’s motion for a preliminary injunction finding Pom Wonderful would not succeed in its claim of infringement primarily due to the distinct visual features of the two companies’ products.

On appeal, the Ninth Circuit found the district court clearly erred in weighing the marks’ differences more heavily than their similarities.  The Circuit Court stated: “Balancing the marks’ many visual similarities, perfect aural similarity, and perfect semantic similarity more heavily that the marks’ visual dissimilarities – as we must – the similarity factor weighs heavily in Pom Wonderful’s favor. . . . Mistakenly weighing the marks’ differences more heavily than their similarities, the district court clearly erred in finding that the similarity of the marks factor weighed against Pom Wonderful.”   The Circuit Court also found the district court erred in its analysis of other likelihood of confusion factors, including marketing channel convergence, evidence of actual confusion, the defendant’s intent, and product expansion.

Pom Wonderful v. Robert Hubbard Jr., Case no. 14-55253 (9th Cir., Dec. 31, 2014)