Trademark disputes are common at the Supreme Court, and a new case taken for its October Term 2025 asks an important question: Should a judge or a jury weigh the facts in such disputes?
In RiseandShine Corporation v. PepsiCo, Inc., canned coffee maker Rise Brewing sued beverage giant PepsiCo after PepsiCo marketed a morning energy drink called Mtn Dew RISE. Alleging violations of the Lanham Act, which regulates trademarks, Rise Brewing claimed that the similarity of two products’ names and drinks’ packaging confused consumers and caused significant harm to its business.
A district court issued a temporary injunction against PepsiCo, but the Second Circuit Court of Appeals vacated the injunction. The appeals court concluded that the lower court made two legal errors in determining the strength of Rise Brewing’s trademark and that the packaging of the two products was not similar when considered in light of existing precedents. The case was returned to the lower court.
The district court then issued a summary judgment for PepsiCo, citing the Second Circuit's conclusions. Rise Brewing petitioned the Supreme Court to review the case, citing other circuit court decisions that, it argued, conflicted with the Second Circuit’s reasoning.
The question presented to the Supreme Court is whether the facts in a trademark dispute should be evaluated as a “question of fact” by a jury or as a “question of law” by a judge. The Supreme Court accepted Rise Brewing’s petition for a writ of certiorari on June 29, 2026.
The Constitution, Trademarks, and the Lanham Act
The Lanham Act of 1946 serves as the basis for modern trademark law in the United States. The act derives its power from the Constitution’s Commerce Clause. In Article 1, Section 8, Clause 3, the Constitution grants Congress the power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”
Congress passed trademark acts in 1881 and 1905, which were greatly strengthened and centralized in 1946. A House report in 1946 accompanying the Lanham Act pointed out several reasons for expanded legislation: “One is to protect the public so it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trademark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats.”
The report cited Justice Felix Frankfurter’s opinion in Mishawaka Rubber and Woolen Company v. S.S. Kresge Company (1942). “The protection of trademarks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them,” he wrote. “If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress,” Frankfurter concluded.
The Lanham Act and Consumer Confusion
The Lanham Act considers trademarks as words, names, symbols, devices, and other forms of communication that distinguish one person's goods from those made or sold by others. An important factor in trademark disputes is the likelihood of a “violation involving the sale, distribution, or advertising of goods or services in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”
According to the United States Patent and Trademark Office, failing a likelihood of confusion test is the most frequent reason trademarks are rejected. The test is also cited in many lawsuits over trademark infringement. In this case, Rise Brewing’s infringement claim was considered by the district court using the Polaroid test, a common multi-factor trademark standard, based on the Second Circuit’s decision in Polaroid Corp. v. Polarad Electronics Corp. (1961). In November 2021, the U.S. District Court for the Southern District of New York weighed different factors under the Polaroid test. Judge Lorna G. Schofield issued the preliminary injunction against PepsiCo., citing the inherent strength of Rise’s trademark as a key factor under Polaroid.
In the Second Circuit’s decision from July 2022, Judge Pierre N. Leval concluded that the district court’s decision was “premised on two significant errors.” Leval noted that Rise Brewing needed to show that a “significant number of consumers are likely to be misled or confused as to the source of the products in question.” He said the lower court was incorrect in its analysis of the trademark’s strength.
“While this Court has said, at times, that the classification of a mark is a factual matter, we have also stated that there is an undeniable legal element in the determination of how much strength a given mark commands,” wrote Judge Leval.
“The close associations between the word “Rise’ and coffee constituted a weakness of the mark under the trademark law, which reduced, rather than advanced, Plaintiff’s likelihood of success on the merits. Because the word ‘Rise’ is so tightly linked with the perceived virtues of coffee, the mark is inherently weak and commands a narrow scope of protection,” he concluded.
The Petition to the Supreme Court
In its final petition to the Supreme Court, Rise Brewing argued that “the Second Circuit vacated the injunction based on its own view that Rise’s mark was an inherently weak ‘cliché.’ Bound by that determination on remand, the district court granted summary judgment to PepsiCo on the merits, rejecting as a matter of law a case the court previously would have sent to a jury.”
Both sides disagreed on the premise that other circuit courts are divided on the question. PepsiCo argued that there is no circuit split. Rise Brewing insisted that 12 circuits agreed with its reasoning and that the Second Circuit was an outlier.
Solicitor General D. John Sauer offered another viewpoint. “Granting the petition for a writ of certiorari to determine the proper characterization of the inherent-strength subfactor, in isolation from the larger multi-factor likelihood-of-confusion analysis, would be in tension with this Court’s usual practices,” Sauer said. “Further review is not warranted.”
The justices accepted the appeal after three private conferences. The case is focused on a single question: “Whether trademark strength is a question of fact in a likelihood-of-confusion analysis under 15 U.S.C. § 1114 [the Lanham Act].
Among court observers, the belief is that the case outcome might have a broad impact on law involving trademark disputes. Currently, federal circuits use differing likelihood-of-confusion analysis tests in such disputes.
“It is difficult to predict the Supreme Court’s leanings either way, but a decision will impact almost all trademark cases going forward,” wrote Adam Baker, of Bradley Arant Boult Cummings LLP, in the National Law Review.
Scott Bomboy is the editor in chief of the National Constitution Center.
