Answer first: The U.S. Supreme Court has granted certiorari in RiseandShine Corp. v. PepsiCo, Inc. to determine whether the strength of a trademark is a question of fact for the jury or a question of law for the court. This issue affects how likelihood-of-confusion analyses under the Lanham Act are conducted, with twelve circuits t…
Trademarks context for IP teams
As the 2025-2026 term draws to a close, the U.S. Supreme Court has agreed to address a pivotal procedural question in trademark law: whether the strength of a trademark is a question of fact or a question of law. The Court granted certiorari in RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016, a dispute arising under the Lanham Act involving RiseandShine’s RISE canned cold brew coffee and PepsiCo’s MTN DEW RISE ENERGY product.
The central issue is procedural and concerns the placement of a mark on the spectrum of distinctiveness, which informs the likelihood-of-confusion analysis under 15 U.S.C. § 1114. This question determines whether the strength of a mark should be decided by a jury as a factual matter or by a judge as a legal matter.
Key takeaways for trademark as
- Confirm how the development affects trademarks ownership, enforcement, licensing, or portfolio records.
- Separate confirmed facts from legal interpretation before advising business teams.
- Map deadlines, affected assets, contracts, and evidence files to the responsible internal owner.
- Use the issue as a prompt for monitoring, filing strategy, dispute preparation, or member education.
Practical analysis
Currently, twelve federal circuits treat the strength of a trademark as a factual question. Under this approach, juries typically decide the issue, and appellate courts review such findings with substantial deference under a clear-error standard. By contrast, the Second Circuit stands alone in treating inherent mark strength as a legal question for the court to decide. In RiseandShine, the Second Circuit held the RISE mark to be weak as a matter of law, which facilitated summary judgment in favor of PepsiCo. See RiseandShine Corp. v. PepsiCo, Inc., 41 F.4th 112 (2d Cir. 2022).
The Solicitor General, responding to the Supreme Court’s invitation, agreed that the Second Circuit mischaracterized the inquiry by treating mark strength as a legal question. However, the Solicitor General recommended denying certiorari on procedural grounds. Despite this, the Court chose to hear the case.
The classification of trademark strength as factual or legal has significant practical consequences. If treated as factual, the issue is submitted to the jury, making summary judgment more difficult to obtain and ensuring deferential appellate review. If treated as legal, judges decide the issue, increasing the likelihood of summary judgment and allowing appellate courts to review the question de novo.
This case also reflects an internal conservative divide within the Supreme Court. On one side is a commitment to historic constitutional protections, including the Seventh Amendment’s guarantee of a civil jury trial. On the other is a concern that civil juries require stronger judicial oversight and control to ensure proper adjudication.
The Court’s forthcoming decision will provide critical guidance on the procedural handling of trademark strength in likelihood-of-confusion analyses, shaping litigation strategies and trial practices in Lanham Act cases nationwide.
The case underscores the evolving nature of trademark jurisprudence and the balance between judicial authority and jury participation in civil intellectual property disputes.
Keywords: trademark strength, Lanham Act, likelihood of confusion, RiseandShine v. PepsiCo, summary judgment, jury trial, Seventh Amendment, Second Circuit, Supreme Court, trademark litigation
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Related IIPLA reading
Supreme Court to Resolve Whether Trademark Strength Is a Legal or Factual Question in RiseandShine v. PepsiCo The U.S. Supreme Court has granted certiorari in RiseandShine Corp. v. PepsiCo, Inc. to determine whether the strength of a trademark is a question of fact for the jury or a question of law for the court. This issue aff... Read the full IIPLA blog post: https://iipla.org/blog/supreme-court-to-resolve-whether-trademark-strength-is-a-legal-or-factual-question-in-riseandshine-v-pepsico