Background
RiseandShine Corporation, doing business as Rise Brewing, sells nitro cold-brew coffee products under the registered trademark “RISE.” In 2021, PepsiCo launched a new energy drink line called “Mtn DEW Rise Energy.” Rise Brewing sued in the Southern District of New York, arguing that consumers would be confused between the two brands — particularly since PepsiCo was entering the coffee-adjacent ready-to-drink energy market with a product whose name prominently featured the word “Rise.”
The district court initially granted Rise Brewing a preliminary injunction, but the Second Circuit reversed. On remand, the district court granted summary judgment for PepsiCo, ruling that Rise Brewing’s “RISE” trademark was conceptually (or inherently) weak because it is a common English word describing a desirable quality of an energy drink — the feeling of rising energy, waking up, or elevation. The Second Circuit affirmed in December 2024, treating the inherent distinctiveness and conceptual strength of the “RISE” mark as a question of law for the court to decide, not a question of fact for a jury. The Solicitor General, asked by the Court whether to grant cert, recommended denial — but the Supreme Court granted certiorari anyway on June 29, 2026.
The Question Before the Court
The Supreme Court did not yet decide the merits of the trademark dispute. By granting certiorari, the Court agreed to hear the following question: Whether a trademark’s inherent or conceptual strength — specifically, whether a mark is suggestive versus descriptive, or strong versus weak within the spectrum of distinctive marks — is a question of fact for juries or a question of law for judges.
In the Second Circuit, the court treated inherent distinctiveness and conceptual strength as purely legal questions, meaning a judge (not a jury) determines whether the plaintiff’s mark falls on the strong or weak end of the spectrum. The Supreme Court’s grant signals it may reconsider whether that determination should go to the jury. A ruling on the merits is expected in the Court’s October 2026 term.
Key Takeaways
- The Supreme Court will resolve whether “trademark strength” — a key factor in every likelihood-of-confusion analysis — is decided by judges or juries.
- If the Court holds it is a factual question, defendants will find it harder to win summary judgment, because juries would resolve whether a mark is conceptually strong or weak.
- The SG’s opposition to the cert grant did not deter the Court — suggesting at least four Justices see a genuine circuit disagreement or doctrinal error worth correcting.
- Companies that use common words as trademarks (Rise, Spark, Boost, Peak) face more uncertainty in trademark litigation until the Court rules.
Why It Matters
Trademark strength sits at the heart of every infringement case. A “strong” mark gets broad protection; a “weak” mark gets narrow protection and is easier for competitors to coexist alongside. Courts currently treat strength partly as a factual inquiry (consumer surveys, market evidence) and partly as a legal conclusion (where on the distinctiveness spectrum does this mark fall?). The question the Supreme Court agreed to decide is whether the legal half of that analysis should actually go to the jury.
The practical stakes are significant. Sending more of the strength analysis to juries makes it harder for defendants to end cases on summary judgment, raising litigation costs for both sides. Brand owners who chose names that overlap with common vocabulary — including descriptive or weakly suggestive terms — will want to watch this case closely as it works toward oral argument.