Finding flaws in a lower court’s likelihood of confusion analysis, the Ninth Circuit Court of Appeals has vacated the denial of an injunction sought by Pom Wonderful that would block the sale of Pur Beverages’ “pur pom” energy drink. Pom Wonderful v. Hubbard, No. 14-55253 (9th Cir., order entered December 30, 2014).

Pom Wonderful sued Pur to prevent Pur from using the name “pur pom” based on a claim of trademark infringement, but a California federal court denied Pom Wonderful’s motion for preliminary injunction, finding that Pom likely would not prevail because of distinct visual features on the products. The Ninth Circuit disagreed; it found significant similarities between the “POM” mark owned by Pom and the “pom” used by Pur, including a stylized “o” in each. “POM” and “pom” also sound the same and both refer to pomegranate flavoring or ingredients, the court noted. “Balancing the marks’ many visual similarities, perfect aural similarity, and perfect semantic similarity more heavily than the marks’ visual dissimilarities—as we must—the similarity factor weighs heavily in Pom Wonderful’s favor,” the court found. “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.” It also pointed out that both companies are likely to use the same market channels and their products are highly similar, which increases the likelihood of confusion.