Supreme Court to Resolve Whether Trademark Strength Is a Question for Judge or Jury

As the 2025-2026 Supreme Court term concludes, the Court has agreed to address a significant procedural question in trademark law: whether the strength of a trademark is a question of fact or a question of law. The case, RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016, involves a Lanham Act dispute between RiseandShine Corp., the producer of RISE canned cold brew coffee, and PepsiCo, the seller of MTN DEW RISE ENERGY.

The core issue presented is whether trademark strength—specifically, a mark’s placement on the spectrum of distinctiveness—is a factual determination typically reserved for a jury or a legal question decided by a judge. This question arises within the likelihood-of-confusion analysis under 15 U.S.C. § 1114.

Currently, twelve federal circuits treat the strength of a mark as a factual matter. Under this approach, juries decide the issue, and appellate courts apply a deferential clear-error standard when reviewing those findings. Conversely, the Second Circuit stands alone in treating inherent trademark strength as a legal question for the court. In the underlying case, the Second Circuit held that the RISE mark was weak as a matter of law, thereby granting 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 trademark strength as a legal question. However, the Solicitor General recommended denying certiorari on procedural grounds. Despite this, the Supreme Court granted review.

The classification of trademark strength as factual or legal carries significant procedural consequences. If deemed factual, the issue goes to the jury, making summary judgment less likely and appellate review more deferential. If deemed legal, judges decide the issue, increasing the likelihood of summary judgment and allowing appellate courts to review the question de novo.

This case also highlights an internal ideological divide within the Supreme Court. On one side are justices emphasizing historic constitutional protections, including the Seventh Amendment’s guarantee of a civil jury trial. On the other side are justices concerned about the need for stronger judicial oversight of civil juries.

The Supreme Court’s forthcoming decision will resolve this circuit split and clarify the procedural framework for assessing trademark strength in infringement cases. The ruling will have broad implications for litigants, potentially affecting trial strategies, summary judgment standards, and appellate review in trademark disputes.

The case is closely watched by trademark practitioners and scholars for its potential to reshape the balance between judges and juries in trademark litigation.