On June 29, 2026, the Supreme Court agreed to review RiseandShine Corp. v. PepsiCo, Inc. (Docket No. 24-1016), which pits a coffee brewer against the cola giant over the former’s “RISE” trademark. The matter has raised the constitutional question of whether a judge or jury should determine trademark strength in trademark infringement disputes.
Currently, twelve Federal Circuit Courts leave the question up to the jury, but the Second Circuit deemed it a question for the judge. The Supreme Court will decide the matter in RiseandShine Corp.’s (“Rise Brewing”) case, but more broadly, the legal landscape of the Seventh Amendment, which guarantees a jury trial in federal civil cases, could shrink if the Supreme Court upholds the Second Circuit’s finding that trademark strength is a question of law rather than fact. And the present circuit split could promote forum shopping because a party might decide to file its case based on whether a judge or jury decides the strength of the trademark, with the hopes of one being more favorable than the other.
In 2016, Rise Brewing sold its first cans of nitro-brewed coffee featuring RISE written in bold red letters on the front of the can with a sunrise behind it. Subsequently, Rise Brewing discovered that PepsiCo (“Pepsi”) was going to sell an energy drink bearing MTN DEW RISE ENERGY on its label. In March 2021, MTN DEW RISE ENERGY was launched. In response to the launch, Rise Brewing filed suit against Pepsi for trademark infringement, which was litigated on the merits in the U.S. District Court for the Southern District of New York.
The District Court initially granted Rise Brewing a preliminary injunction against Pepsi because the court found that the RISE mark, although suggestive, had some inherent conceptual strength. That supported Rise Brewing’s likelihood of success on the merits of its trademark infringement claims because a mark’s strength is an element considered in evaluating consumer confusion. Pepsi appealed the preliminary injunction to the U.S. Court of Appeals for the Second Circuit. On appeal, the Second Circuit reversed the District Court, stating that the lower court committed legal error when it classified Rise Brewing’s mark as having strong logical connections between the RISE mark and the coffee product sold under it. The Second Circuit found that these connections rendered the RISE mark weak, and stated the determination of a trademark’s strength includes “an undeniable legal element[.]” RiseandShine Corp. v. PepsiCo, Inc., 41 F.4th 112, 121 (2d Cir. 2022). The Second Circuit reversed the District Court’s conclusion on trademark strength and the preliminary injunction. The case was remanded, and after discovery, the District Court granted summary judgment for Pepsi on all counts before the case reached the jury, finding that no reasonable juror could conclude a likelihood of confusion between Rise Brewing’s mark and Pepsi’s mark. Rise Brewing appealed to the Second Circuit, but summary judgment was affirmed.
Subsequently, Rise Brewing filed a petition for certiorari, asking the Supreme Court to determine whether the strength of a trademark is to be decided by the judge or a jury. Pepsi opposed this petition, and the Solicitor General was asked to file a brief. The Solicitor General stated the Second Circuit erred in its finding that strength was a question of law to be determined by the judge, but this error had no impact on the outcome of the case because the decision was on summary judgment.
The Supreme Court will now decide whether a trademark’s strength during a likelihood-of-confusion analysis in trademark infringement cases should be determined by a judge or a jury. Where the Court will land is unclear but the potential effects of the decision make the case worth following closely. No date has been set yet for oral argument but it is expected to be heard as early as this fall.
If you have any questions, please contact your Dinsmore intellectual property attorney.