The U.S. Supreme Court has agreed to hear RiseandShine Corp. v. PepsiCo, Inc. (PEP), a significant trademark case with wide implications for how infringement disputes are litigated across the country.
The dispute stems from PepsiCo’s 2021 launch of fruit-flavored canned energy drinks marketed under the name MTN DEW RISE ENERGY, which RiseandShine Corp. alleges infringed its RISE BREWING CO mark.
RiseandShine Corp. has used its RISE BREWING CO mark and a related design mark since 2015 in connection with ready-to-drink canned coffee and tea beverages sold across the United States.
The company’s legal claim rests on a theory of “reverse confusion,” which arises when consumers may mistakenly believe that the smaller, senior trademark user is sponsored by or affiliated with, or otherwise connected to, the larger, junior user.
The Supreme Court will not directly rule on whether PepsiCo infringed RiseandShine’s trademarks, but will instead decide whether trademark strength is a question of fact, a question of law, or a mixed question of the two.
The case is scheduled to be heard during the Supreme Court’s October 2026 session, making it one of the more consequential intellectual property cases of the term.
Trademark strength generally comprises two components: inherent, or conceptual, strength, and acquired, or commercial, strength, with marks ranked along a spectrum from generic to fanciful.
RiseandShine argues in its petition that “the Second Circuit stands alone in considering [trademark strength] a question of law,” while twelve other circuits treat it as an issue of fact.
PepsiCo counters that “there is no circuit split on acquired strength, which all courts treat as factual,” and that other factors, including the dissimilarity of the parties’ marks, independently support the lower court ruling in its favour.
The U.S. District Court for the Southern District of New York had initially granted a preliminary injunction barring PepsiCo from using its RISE mark, before the Second Circuit reversed that finding on appeal.
On remand, the district court granted PepsiCo’s motion for summary judgment, holding that RiseandShine’s RISE mark was “inherently weak as a matter of law,” a conclusion the Second Circuit subsequently upheld.
The Solicitor General filed an amicus curiae brief recommending that “the petition for a writ of certiorari should be denied,” describing inherent strength as a “mixed question of law and fact” in which “the factual component predominates.”
The government argued the Second Circuit was “incorrect” but that it was “far from clear whether the court’s error was outcome-determinative in this case,” yet the Supreme Court granted certiorari regardless.
If the Court sides with RiseandShine, juries and trial courts would gain a greater role in determining trademark strength, and summary judgment could become harder to obtain when consumer-perception evidence is in dispute.
A ruling in favour of PepsiCo would allow appellate courts to apply uniform legal standards with de novo review, though it could leave the Second Circuit as an outlier and encourage forum shopping in multi-jurisdiction cases.