A small coffee company’s trademark fight with PepsiCo has reached the US Supreme Court. On 29 June the justices agreed to hear RiseandShine Corp. v. PepsiCo, a case that could change how trademark disputes between small brands and large ones are decided.
RiseandShine sells canned nitro cold brew under the Rise Brewing Co. name. In March 2021 PepsiCo launched an energy drink called Mtn Dew Rise Energy, and RiseandShine sued in federal court in New York.
From early win to dismissal
RiseandShine first won a preliminary injunction blocking PepsiCo’s use of the name while the case went on. The Second Circuit vacated it, finding the RISE mark weak because the word is closely associated with coffee and others had used it on coffee before. Back in the trial court, PepsiCo won summary judgment on the basis that the marks were inherently weak as a matter of law, and the Second Circuit affirmed. No jury ever considered the question.
What the Supreme Court will decide
The Court will not decide whether PepsiCo infringed. It will decide whether a trademark’s strength, a key factor in deciding whether consumers are likely to be confused, is a question of fact or of law. RiseandShine argues every other circuit treats it as a factual question for a jury; PepsiCo disputes that there is a real split.
The US government has filed briefs in the case, including one supporting vacatur. RiseandShine filed its merits brief on 8 September, and PepsiCo’s is due on 4 November. No argument date has been set.
For a small brand, the difference between a judge and a jury can be the difference between a quick dismissal and a day in court.
What to watch
- PepsiCo’s brief and the date set for oral argument.
- A ruling, expected by the end of the Court’s term, that could reshape trademark trials nationwide.
