Question Presented
Is trademark strength a question of fact, rather than a question of law, in a trademark infringement likelihood-of-confusion analysis?
Facts of the Case
Rise Brewing was founded in 2014 and built a national brand selling canned nitro-brewed coffee under registered “RISE” marks, investing roughly $17.5 million in advertising and earning consumer awards including People Magazine's 2019 “Best Canned Coffee.” PepsiCo, which had previously met with Rise Brewing’s founders as a potential acquisition target, chose instead to launch its own canned energy drink in March 2021 under the mark “MTN DEW RISE ENERGY,” displaying the word “RISE” in large capital letters across the upper third of the can—matching the visual format of Rise Brewing’s product. Witness testimony confirmed that consumer confusion between the two products was the “norm, not the exception,” with customers ordering Rise Brewing’s coffee and receiving PepsiCo’s product instead. Rise Brewing sued PepsiCo for trademark infringement, arguing that PepsiCo’s use of “RISE” created a likelihood of reverse confusion—consumers mistakenly believing Rise Brewing’s coffee was affiliated with or produced by PepsiCo. Central to the litigation was how to assess the strength of the RISE marks, which a court must weigh as part of its likelihood-of-confusion analysis: the district court treated mark strength as a factual matter and found the RISE marks sufficiently strong to favor Rise Brewing, while PepsiCo argued the marks were inherently weak and thus entitled to only minimal protection.
The district court granted Rise Brewing a preliminary injunction in November 2021, finding the RISE marks’ inherent and acquired strength supported a likelihood of confusion, but the U.S. Court of Appeals for the Second Circuit vacated the injunction in July 2022, holding as a matter of law that the RISE marks were inherently weak. On remand, the district court entered summary judgment for PepsiCo in August 2023, treating itself as bound by the Second Circuit's legal determination on mark strength, and the Second Circuit affirmed that judgment in December 2024, reaffirming that a mark’s inherent strength is a legal question for judges to decide de novo.