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Hot on the heels (at least in terms of court timelines) of winning a deceptive trade practices suit at the U.S. Supreme Court, POM Wonderful, fabled maker of pomegranate juice, won another suit at the Ninth Circuit. This time, POM Wonderful claimed that a rival company was improperly using its trademark, which might cause confusion.
On balance, said the court, a reasonable consumer could mistake a competitor's product for POM Wonderful's.
Juice maker Pur Beverages began selling a juice called "Pom," using a short "o" mark in such a cute way that they must have known it was doomed to failure. POM Wonderful claimed consumers would be confused and associate Pur's juice with POM's juice. Of course, that's exactly the point of such a stunt, and even though a federal district court didn't find any trademark violations, the Ninth Circuit sure did.
The decision hinges on whether the trial court abused its discretion in concluding that consumers wouldn't be confused by the strangely similar name. Abuse of discretion is a high bar to jump, but Judge David M. Ebel (a Tenth Circuit senior judge sitting in on this one) cleared it handily.
And why not? The only part of the analysis the district court got wrong, according to Ebel, was the third factor of the analysis, "the similarity of marks." Visually, both POM and Pom use different logos and typefaces, but, notably, "each mark is comprised of the same three letters." POM stylizes the "o" as a heart, while Pom uses that short "o" mark. That, though, is where they part ways in terms of visual similarity.
But POM Wonderful has an advantage: The word POM "is not ascribed independent pomegranate-related meaning by conventional dictionaries." In fact, prior to POM Wonderful's existence, no drink on the market used the word "POM" to mean a pomegranate drink. The district court acknowledged that "Pom" means exactly the same thing for both products -- that it's a pomegranate-flavored drink. This advantage matters because "a lesser degree of similarity is required when a trademark holder's mark is strong," like POM Wonderful's is.
Ebel also faulted the district court's analysis of "market channel convergence." Basically, are these products sold in the same place and to the same people? You bet: Even though they're not sold at exactly the same stores, they're sold in the same kinds of stores, meaning consumers could see them both on the same shelf and be confused about which is which.
On balance, said the Ninth Circuit, it's likely that a consumer could be at a store faced with two products that are similar enough that she might be confused about who makes what. Preliminary injunction granted. Better luck next time, Pur.
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