On June 29, the Supreme Court agreed to review the question of whether judges or juries should decide a trademark’s inherent strength when assessing whether consumers are likely to be confused by the mark in trademark disputes under the Lanham Act. The implications of the Court’s decision on this question could affect trademark litigation nationwide.

Background on the Rise Brewing/PepsiCo “Mtn Dew Rise” Trademark Dispute

This issue stems from a long-standing trademark dispute between PepsiCo, Inc. and Rise Brewing Co. after Pepsi launched a fruit-flavored energy drink marketed to morning drinkers called “Mtn Dew Rise” in 2021. This release prompted Rise to sue Pepsi in New York federal district court, seeking monetary damages and a court order blocking Pepsi from using the “Rise” name. In support of its claim, Rise alleged that Pepsi was trying to “destroy a leading competitor” by flooding the market with a similarly named product that infringed upon its “Rise” trademark for nitro-brew coffee.

The New York federal district court initially sided with Rise and temporarily blocked Pepsi from using the “Mtn Dew Rise” name, noting that it posed an “existential threat” to Rise’s business. In response, Pepsi renamed the drink “Mtn Dew Energy,” eventually discontinuing the product in 2024. Although Pepsi was no longer marketing or selling “Mtn Dew Rise,” the underlying trademark strength issue persisted. Reviewing the decision below, the Second Circuit Court of Appeals vacated the order barring Pepsi from using the “Rise” name and remanded the case back to the district court. As its rationale, the Second Circuit found that the mark was conceptually weak and that the competing products’ appearances were dissimilar.

On remand, the New York federal district court agreed with the Second Circuit’s finding that the products were dissimilar. The court also concluded that Rise’s trademark rights for the “Rise” name were weak because of the “strong logical associations between ‘Rise’ and coffee.” The Second Circuit affirmed this holding in late 2024, but the legal dispute continued when Rise petitioned the Supreme Court to review the trademark strength question.

The Supreme Court Agrees to Review the Trademark Strength Issue

In October 2025, the Supreme Court enlisted the U.S. Solicitor General to help assess the viability of Rise’s petition. The Solicitor General notably found that the Second Circuit errantly characterized a trademark’s inherent strength as a legal question because it is a fact-intensive, mixed legal and factual question ordinarily resolved by a jury. However, it urged the Court not to review this issue because it found that the question was unlikely to affect the outcome of the instant case. It reasoned that inherent mark strength is only one prong of a broader “strength-of-the-mark” analysis, which itself is one factor of several in a multifactor test for determining consumer confusion under the Lanham Act.

In response to this finding, Rise filed a supplemental brief arguing that the Solicitor General’s response confirmed a circuit split and a legal error that warranted Supreme Court review. It reasoned that the error took a consumer perception question away from juries that is critical to the outcome of the Lanham Act’s likelihood-of-confusion analysis. Agreeing with the Solicitor General’s conclusion, Pepsi responded that this dispute is a poor vehicle for Supreme Court review because it is a “run-of-the-mill trademark dispute” that “lacks sufficient importance” and will not affect the outcome of the instant case. Ultimately, the Supreme Court agreed to review the question of whether the strength of a trademark is a question of fact for the jury to decide or a question of law for the judge to decide under the Lanham Act.

Implications of Supreme Court Review

The implications of the Court’s decision on this issue are considerable. If trademark strength under the Lanham Act is treated as a factual issue, it enables the jury to resolve the question, making early dismissal and summary judgment harder to win for the defendant and securing more deferential review from an appellate court. If the issue is treated as a legal question for the judge to assess, the opposite is true: The door to summary judgment swings open on the issue, which invites more scrutinizing de novo review on appeal.

Per Dennis Crouch, a professor at University of Missouri School of Law, this question also exposes an internal conservative divide on the Court. On one side is the conservative commitment to historic constitutional protections, like the Seventh Amendment’s civil jury guarantee. Counterbalancing this commitment is a conservative desire for stronger judicial supervision and control of juries.

Given this issue’s significant implications for trademark litigation nationwide, its resolution is guaranteed to draw attention in the trademark law arena when the Court hands down its decision next term.

Sean Lonergan, a Summer Associate based in the Minneapolis office, contributed to this blog post.