On 29 June 2026, the Supreme Court agreed to hear a trademark dispute between RiseandShine Corporation, trading as Rise Brewing, and PepsiCo, Inc. over Pepsi’s “Mtn Dew Rise Energy” drink.
The Court granted certiorari specifically on whether judges or juries should evaluate a trademark’s inherent, or conceptual, strength when assessing the likelihood of consumer confusion under the Lanham Act.
Rise Brewing sells nitro-brewed canned coffee under the registered mark “RISE,” a product it has built its business identity around.
In 2021, PepsiCo launched a canned energy drink called “Mtn Dew Rise Energy,” prompting Rise Brewing to file suit alleging trademark infringement and unfair competition under the Lanham Act.
The Second Circuit affirmed summary judgment in favour of Pepsi, treating the strength of Rise Brewing’s mark as a legal question rather than a factual one for a jury to decide.
The court concluded that “RISE” was inherently weak due to the word’s close association with coffee, waking up, and morning energy, and that consumers were unlikely to be confused by the two products’ sufficiently different branding.
Rise Brewing argued that the Second Circuit stands alone in treating trademark strength as a pure question of law, while most other circuits treat consumer perception of a mark as a factual issue resolved by a jury.
The Solicitor General had recommended denying review, agreeing the Second Circuit erred but arguing the error was not outcome-determinative, since inherent strength is just one part of the broader likelihood-of-confusion analysis.
The Government pointed out that other factors in the confusion analysis also cut against Rise Brewing, making the case a less-than-ideal vehicle for resolving the underlying legal question.
Notably, the Court took up an unpublished summary order rather than a full appellate opinion following trial, which is an unusual step for a matter of this significance.
The Court may ultimately issue a narrow procedural ruling and stop short of resolving the different likelihood-of-confusion tests applied across the various circuit courts.
Nonetheless, the decision carries meaningful practical consequences for trademark disputes, particularly for defendants seeking to dispose of cases before trial through summary judgment.
If the justices treat inherent trademark strength as a factual question for a jury, it will be significantly harder for defendants to secure early dismissal in trademark infringement cases going forward.
The outcome of the case could reshape how trademark litigation is conducted across the United States, with major implications for brand owners and businesses of all sizes.