Overview
On June 29, 2026, the Supreme Court granted certiorari in RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016, agreeing to resolve a question that has quietly divided the federal circuits for years: is the inherent strength of a trademark a question of fact for the jury, or a question of law for the court? The Court's answer will reach far beyond the parties’ fight over cold brew coffee and energy drinks, touching how trademark infringement suits are litigated nationwide.
Background
RiseandShine Corporation, d/b/a Rise Brewing Co., has sold canned nitro cold brew coffee under its RISE marks since the mid-2010s, building brand identity around bold red lettering and a sunrise motif. In March 2021, PepsiCo launched Mtn Dew Rise Energy, a fruit-flavored energy drink marketed for morning consumption. Rise Brewing sued PepsiCo in the Southern District of New York later that year, alleging trademark infringement, false designation of origin, and unfair competition, and pointing to prior business discussions between the companies as evidence that PepsiCo was well aware of its marks before launch.
The case has swung back and forth ever since. The district court initially sided with Rise Brewing, granting a preliminary injunction in November 2021 on the theory that the RISE marks carried real conceptual strength. The Second Circuit vacated that injunction in July 2022, holding that the marks' close association with coffee, mornings, and energy made them conceptually weak, and characterized that determination as carrying “an undeniable legal element.” On remand, the district court granted summary judgment to PepsiCo, and the Second Circuit affirmed in an unpublished December 2024 summary order.
The Question Presented
Rise Brewing’s cert petition asks a narrow but potentially consequential question: whether the inherent (or conceptual) strength of a trademark—a subfactor within the multi-factor likelihood-of-confusion analysis—is a question of fact for a jury or a question of law that a court may decide, including at summary judgment.
Most circuits currently treat a mark’s placement on the spectrum of distinctiveness (generic, descriptive, suggestive, arbitrary, or fanciful) as a factual matter typically reserved for the jury and reviewed with deference on appeal. The Second Circuit stands alone in treating a mark’s inherent strength as a legal question, a framework that allowed the district court to find the RISE marks weak “as a matter of law,” clearing the way for summary judgment in PepsiCo’s favor.
Why It Matters Beyond the Parties
The immediate dispute is contained: resolving a reverse-confusion claim by a smaller beverage brand, with PepsiCo having already prevailed twice below. But the procedural question the Court agreed to answer sits at the intersection of trademark doctrine and the Seventh Amendment right to a civil jury trial.
If the Court holds that trademark strength is predominantly a factual inquiry, defendants may find it harder to dispose of infringement claims at summary judgment, particularly in circuits that follow the Second Circuit’s approach. More cases could proceed to trial. Conversely, a ruling affirming that courts may resolve mark strength as a matter of law could reinforce judges’ ability to narrow protection for suggestive marks early in litigation—especially in crowded product categories where competitors commonly use similar descriptive or suggestive terms.
There is also a forum-shopping dimension. A circuit split on whether strength is decided by judge or jury gives plaintiffs and defendants alike an incentive to consider where they file, potentially independent of the merits.
What to Watch
Briefing and argument will likely unfold over the Court's next term. Practitioners handling trademark infringement matters—particularly those litigating in or contemplating the Second Circuit—should watch this case closely, as the ruling could reshape summary judgment strategy in likelihood-of-confusion disputes well beyond the beverage aisle.
We will continue to monitor developments in RiseandShine Corp. v. PepsiCo, Inc. and provide updates as briefing proceeds.
