PepsiCo prevails in Mtn Dew Rise trademark case

An appeals court overturned a prior ruling that banned PepsiCo from selling Mtn Dew Rise Energy drinks due to confusion it could have created with Rise Brewing, a canned coffee maker.

The 2nd U.S. Circuit Court of Appeals panel determined a lower court “erred [in] assessing the strength of Plaintiff’s mark and the similarity of the products.”

In overturning a preliminary injunction, the panel said the lower court’s decision was “premised on two significant errors” — the strong logical associations between the word “Rise” and coffee that “weakens” the upstart’s trademark, and the frequent use of “Rise” in a multitude of products such as beverages, yogurts and granola. PepsiCo shared with the court more than 100 examples where “Rise” was used by other products in reference to providing energy, similar to the strategy used by the coffee company.

Rise Brewing “argues that there is no such room for multiple ‘Rise’ marks to coexist peacefully, even outside the coffee sector. That is not persuasive,” the court ruled. “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.”

Rise Brewing filed a lawsuit last June against PepsiCo, claiming it copied the branding of its ready-to-drink coffee. Rise Brewing said it has caused confusion over who the maker is for its products, which also target morning caffeine drinkers. Both Mtn Dew Rise Energy and the coffee company’s cans feature logos with the word “rise” in all capital letters.

In its ruling, the 2nd U.S. Circuit Court of Appeals panel said the differences between the two products are “far more notable than the similarities.” It noted the two cans have different sizes, proportions, styles, colors and artwork. Even the word “Rise” is presented on the cans in two “very different manners.”

In November, U.S. District Judge Lorna Schofield determined Rise Brewing would likely succeed in proving that its trademark is valid and that PepsiCo was causing confusion among consumers with its product’s branding. 

As food and beverage companies enter new markets and shift to accommodate changing consumer tastes, the offerings have on occasion drawn the ire of other companies and brands already sold on store shelves.

In its lawsuit, Rise Brewing described PepsiCo as “a repeat trademark offender” — noting the beverage giant has fought other trademark infringement allegations from small brands over products it designed to expand into promising beverage segments and usage occasions. And last November, Nestlé USA settled with Danone North America after filing a lawsuit claiming the company’s Silk brand coffee creamers copy unique branding and packaging designs from its Coffee-mate Natural Bliss line.