PepsiCo Has Won Its Appeal Against Coffee Company Rise Brewing
In March 2021, drinks giant PepsiCo launched Mtn Dew Rise Energy, a canned and fruit-flavored caffeinated beverage offshoot from its cult-favorite Mountain Dew brand. Rise Brewing, a company that produces canned coffee and tea beverages under the label "Rise" sued PepsiCo in June 2021 for trademark infringement, claiming that PepsiCo's Mtn Dew Rise Energy product harmed Rise Brewing's ability to raise funds and caused confusion among customers, reports Bloomberg Law.
In November 2021, a federal judge for the Southern District of New York sided with Rise Brewing, ruling that PepsiCo's new Mtn Dew Rise Energy product, which was usually placed on the same shelves in stores as the canned coffees from Rise Brewing, was likely to be confusing to consumers. The court granted a preliminary injunction to Rise Brewing preventing PepsiCo from continuing to manufacture or sell their Mtn Dew Rise Energy products, on the basis that they had "demonstrated irreparable harm and a likelihood of success on the merits of the federal trademark claim." Two weeks after the preliminary injunction was granted, PepsiCo dropped the word "Rise" from its product to comply with the injunction (via Courthouse News).
The Second Circuit overruled the District Court
On July 22, 2022, a three-judge panel on the Second Circuit Court of Appeals vacated the preliminary injunction issued by the District Court (via Reuters). The opinion, written by Judge Pierre Leval and joined by judges Chin and Menashi, noted that the District Court decision had "two significant errors," relating to the strength of Rise Brewing's mark and the similarities in the appearance of the two products.
The Second Circuit opinion noted that "Rise" was a weak mark, and one that has been used more than 100 times in connection with "coffee, tea, bottled beverages, energy drinks, soft drinks" and other products to allude to an increase in energy, especially in the mornings. If there was room for plaintiff's use of 'Rise' in the already crowded coffee field, there would also be room for defendant's, especially on a product that is distinct from coffee.
The Second Circuit also found that the two products were not that similar in appearance, noting that "the two cans are different in size, proportion, style, color, and artwork." Even the sole similarity, the use of the word "Rise" in large bold letters, was presented in different ways. As such, the Second Circuit vacated the preliminary injunction, which means that PepsiCo is free to continue to manufacture and sell its Mtn Dew Rise Energy products once again.