The U.S. Supreme Court has agreed to review the long-running trademark dispute between RiseandShine Corporation d/b/a Rise Brewing and PepsiCo, Inc. over Pepsi's MTN DEW RISE energy drink. The question on which the Court accepted certiorari could affect trademark litigation nationwide: whether a trademark's inherent (or conceptual) strength is a question for a judge to decide as a matter of law or for a jury to decide as a question of fact when evaluating the likelihood of consumer confusion under the Lanham Act.
The Second Circuit affirmed summary judgment in PepsiCo's favor after concluding that Rise Brewing's mark was inherently weak because the word RISE has a strong association with coffee and morning beverages. The court also found that the parties' branding was sufficiently different that consumers were unlikely to be confused. As a result, Rise's infringement claims never reached a jury through trial. Rise sought Supreme Court review, arguing that the Second Circuit improperly treated the inherent strength of its mark as a legal issue for the court, rather than allowing a jury to weigh the underlying factual evidence. Giving this question to a jury to decide how the public perceives a trademark allows the jury to bring consumers' perception, market context, and everyday common sense to bear on the issue.
Notably, the Court accepted review of an unpublished summary order affirming the district court's grant of summary judgment rather than a fully developed appellate opinion after trial. Moreover, the question presented was not the central focus of the courts below; instead, the Court's review will focus on the Second Circuit's treatment of one component of the multi-factor likelihood-of-confusion analysis. PepsiCo pointed to this unusually narrow posture to argue that the case was a poor vehicle for review, which was echoed by the Solicitor General in an amicus brief submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. The government agreed that the Second Circuit appeared to have misstated the law by suggesting that inherent trademark strength is a legal question but nonetheless concluded that review was unwarranted because the issue likely was not outcome determinative. The Solicitor General also observed that several other unchallenged likelihood-of-confusion factors independently supported judgment for PepsiCo, making the case an imperfect vehicle for resolving the broader legal question.
Although the Court's eventual decision may be limited to a procedural aspect of trademark law, it could have meaningful practical consequences. If the Court concludes that inherent trademark strength is generally a factual issue for juries, defendants may find it more difficult to obtain early dismissal or summary judgment in close cases. Whatever the Court decides, this case will give trademark practitioners plenty of reason to RISE to the occasion. Brand owners should continue building evidence of both conceptual and commercial strength, while companies selecting new brands must conduct careful clearance analyses, particularly where a proposed mark overlaps with an existing mark that may be characterized as commercially weak but factually distinctive.