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The U.S. Supreme Court recently granted certiorari in <em>RiseandShine Corporation v. PepsiCo, Inc.</em> to address a narrow but important trademark issue: whether a trademark’s inherent strength as part of a likelihood-of-confusion analysis is a question of law for judges or a question of fact, typically reserved for juries. The answer may affect how often trademark cases are resolved on summary judgment rather than proceeding to a jury trial.

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The dispute began in the U.S. District Court for the Southern District of New York in 2021 when Rise Brewing sued PepsiCo for trademark infringement based on Rise Brewing’s RISE family of marks, including the RISE BREWING CO. mark, used in connection with coffee- and tea-based beverages. Rise Brewing advanced a reverse-confusion theory, arguing that consumers would assume its products were connected to PepsiCo. The district court granted Rise Brewing’s request for a preliminary injunction but the U.S. Court of Appeals for the Second Circuit reversed. It held that RISE, the common element of Rise Brewing’s marks, was inherently weak because of its strong association with coffee, energy and waking up.

The weakness finding also shaped the court’s similarity analysis. Because the Second Circuit held that RISE was weak and thus entitled to only a narrow scope of protection, it found that PepsiCo’s MTN DEW RISE ENERGY mark was not sufficiently similar to Rise Brewing’s RISE-formative marks to create a likelihood of confusion.

On remand, the district court granted summary judgment in PepsiCo’s favor. In affirming, the Second Circuit reiterated that the strength-of-the-mark inquiry and the ultimate likelihood-of-confusion determination could be resolved as legal questions rather than by a jury.

The Supreme Court did not take the case to decide whether PepsiCo’s MTN DEW RISE ENERGY mark is likely to cause confusion with Rise Brewing’s RISE-formative marks. Instead, it agreed to address a threshold question that could shape how trademark cases are litigated nationwide: whether a trademark’s inherent strength is a legal question for judges or a factual question for juries. Rise Brewing argues that the Second Circuit’s approach conflicts with that of several other circuits, which generally treat trademark strength as a factual issue. According to Rise Brewing, allowing courts to resolve trademark strength as a matter of law can prevent infringement claims from ever reaching a jury.

The Supreme Court’s decision could significantly affect when, and how often, trademark infringement cases reach a jury. Trademark strength is a key component of the likelihood-of-confusion analysis, and the Court’s ruling may affect how frequently infringement claims survive summary judgment. If inherent strength is treated as a factual issue, trademark owners may have greater opportunities to present evidence of consumer perception and marketplace context to a jury. Litigants may also place greater emphasis on surveys and other evidence designed to show how consumers perceive a mark. If it remains a legal question, courts may continue resolving those disputes before trial. The ruling may also have cost implications. If trademark strength becomes more difficult to resolve on summary judgment, parties may face increased discovery, expert and trial expenses.

For trademark owners and accused infringers alike, this case is worth watching. The Supreme Court’s decision could shape litigation strategy, influence forum-selection decisions and bring greater uniformity to federal trademark law on a recurring issue in likelihood-of-confusion disputes. The ruling may also provide important guidance on when trademark claims can be resolved on summary judgment.

SCOTUS To Decide Who Determines Trademark Strength: Judge or Jury?