SCOTUS to Rule on Pepsi Win, Trademark Enforcement Changes Could Follow

The U.S. Supreme Court will hear a trademark dispute Involving PepsiCo Inc. and RiseandShine Corp., over the term “rise”.

The court granted RiseandShine Corp., which sells canned nitro coffee under Rise Brewing, certiorari on June 29. Rise Brewing is challenging PepsiCo on account of violating trademark law due to their product, “Mtn Dew Rise Energy.”

PepsiCo challenged the claims of consumer confusion, and in December 2024 the 2nd U.S. Court of Appeals affirmed a district court’s decision, finding no likelihood of consumer confusion.

According to the panel, the strength-of-the-mark factor has two components — inherent strength and acquired strength. They rejected the argument that inherent strength should be treated as a factual question for a jury.

Finnegan partner and co-leader of the litigation and trial section Chip Rettew, told Westlaw Today that, “as a practical matter,” judges often need to decide trademark cases on summary judgment when strength is an issue.

“What may matter most … is not only how the court rules, but the reasoning it uses to get there — reasoning that could supply arguments for, or against, summary judgment in trademark cases."

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