Pepsi's U.S. Trademark Dispute Could Reshape Brand Choices, Lawsuit Strategy, Lawyers Say

A pending Supreme Court trademark case between a U.S. coffee company and PepsiCo could change how businesses develop brands, determine marketing investment needed to build consumer recognition, and evaluate settlement leverage in trademark infringement disputes. 

Rise Brewing, child of parent company RiseandShine Corp, is challenging a ruling affirming summary judgement for Pepsi, regarding a dispute involving a now discontinued product titled MTN DEW RISE ENERGY. As part of their brand, RISE is featured on the company's canned coffee drink.

This case could shine a light beyond the canned beverage industry, according to IP practitioners.

Finnegan partner Chip Rettew told MLex that this dispute matters because conceptual strength is one factor that can drive the broader likelihood-of-confusion analysis. 

“Every circuit except the Second Circuit treats conceptual strength of the trademark as a factual issue, not as a legal issue,” Chip said. 

If Pepsi wins and the Supreme Court held that conceptual strength is a legal question, litigants could then press more forcefully for summary judgment because judges would be able to decide whether a mark is weak, he said.  

“It matters hugely because trying a case before a jury is very different than trying a case before a judge,” Chip said. “If a case can be decided on summary judgment, you avoid the massive cost to go to trial."  

He added, “Therefore, a Pepsi victory would not necessarily favor only large companies." A small business with a clearly strong mark could also benefit by winning early and avoiding the expense of trial. But Chip said such a decision would likely change how businesses and their lawyers approach brand selection.  

“It would incentivize companies and individuals to pick more conceptually strong trademarks, which in some cases will require higher advertising budgets because the more conceptually strong a mark is, the less it communicates about the product,” Chip said. 

“I'm sure they're [Supreme Court justices] going to say some things that will give us some insight on how this should be analyzed,” he said. “That's the thing I love about trademark law. It all always depends, and you can make arguments both ways.” 

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