Supreme Court Takes on Trademark Strength: Who Decides How Strong Your Brand Is?

The United States Supreme Court recently agreed to hear a trademark case that could change how infringement disputes are decided across the country. The case, RiseandShine Corporation v. PepsiCo, Inc., asks a fundamental question: who should decide how strong a trademark is, a judge or a jury?

The dispute started when RiseandShine, a small company that sells canned nitro-brew coffee under the brand RISE, sued PepsiCo after Pepsi launched a competing energy drink called MTN DEW RISE ENERGY in 2021. RiseandShine argued that Pepsi's use of "RISE" in large letters across its cans was likely to confuse consumers into thinking the products were connected.

A federal district court initially agreed with RiseandShine and granted a preliminary injunction blocking Pepsi from using the mark. However, the case took a turn on appeal. The Second Circuit Court of Appeals evaluated the strength of the RISE trademark and concluded that it was inherently weak as a matter of law. The appeals court reasoned that the word "RISE" was closely associated with coffee and energy products, making the mark suggestive rather than distinctive. With a weaker mark, the court found that consumer confusion was less likely.

This ruling raises an important question about how trademark strength is evaluated in federal court. Trademark strength is one of the most critical factors in determining whether consumer confusion exists. It is typically assessed by looking at where a mark falls on a spectrum of distinctiveness, ranging from generic terms that receive no protection to fanciful marks that receive the strongest protection. Suggestive marks, like RISE, fall somewhere in the middle.

Nearly every federal circuit treats this analysis as a factual question, meaning a jury reviews the evidence and decides how strong or weak a mark is. The Second Circuit, however, treated it as a legal question that a judge could resolve without a jury. This created a split among the federal courts that the Supreme Court has now agreed to resolve.

The outcome of this case could have significant implications for trademark owners. If the Supreme Court rules that trademark strength is a question of fact, more infringement cases may proceed to trial, giving brand owners a chance to present evidence of consumer perception to a jury. If the Court sides with Pepsi, judges may have more authority to decide trademark disputes earlier in the process, potentially before a case reaches a jury.

Key Takeaway for Business Owners: This case is a reminder that the strength of your trademark matters. Choosing a distinctive brand name from the start can make it easier to enforce your rights if a competitor adopts a similar mark. A strong, distinctive trademark is not only easier to register but also easier to defend. Business owners should work with a trademark attorney to evaluate the distinctiveness of their brand before investing in marketing and product development.

If you are building a brand or want to evaluate the strength of your existing trademark, a consultation can help you understand your options. Schedule a free consultation with Diorio IP Law Group to discuss your trademark strategy.

As a United States Registered Patent and Trademark Attorney, I help businesses protect their brands and navigate the trademark process. If you are ready to protect your name, logo, or product brand, let's get started on securing your trademark protection today.