On June 29, 2026, the U.S. Supreme Court granted a petition for writ of certiorari in RiseandShine Corp. v. PepsiCo. Inc., case number 24-1016, to address one of the most critical considerations in trademark infringement litigation. The question before the Court is who the proper decider of a trademark’s conceptual strength is: a court as a matter of law or a jury as a matter of fact.

The dispute originated in June 2021 where RiseandShine filed claims of trademark infringement against Pepsi relating to their newly launched “MTN Dew Rise Energy” drink, claiming that use of the term “Rise” is likely to be confused with RiseandShine’s cold-brew coffee products. RiseandShine worried that Pepsi’s large market share would also engulf RiseandShine’s coffee products, leading consumers to mistakenly believe RiseandShine’s products were those of Pepsi. The district court granted RiseandShine’s preliminary injunction, but that injunction was vacated by the Second Circuit on the basis that “Rise” was not an inherently strong mark for coffee and dissimilarities in the products’ appearances. On remand, the district court granted summary judgment for Pepsi, and the Second Circuit affirmed on December 19, 2024.

A Circuit Split Over Trademark Strength

RiseandShine petitioned for Supreme Court review, arguing that the Second Circuit stands alone in considering a trademark’s inherent strength to be a legal question, and thus a question left to the courts to decide. In other circuits, trademark strength is a factual question left to juries, which RiseandShine argues is proper to obtain genuine consumer viewpoints, as likelihood of confusion is based on whether an ordinary consumer would be confused. In response, Pepsi claimed that the dispute was a poor vehicle for granting certiorari, as the Second Circuit is likely to uphold grant of summary judgment even if the Supreme Court reverses and remands the case.

Why the Distinction Matters

The distinction between a question of law versus a question of fact carries significant strategic implications. When conceptual strength is a legal question, courts can resolve it at summary judgment without ever empaneling a jury (such as was done here), allowing defendants to resolve infringement claims earlier and at lower cost. Conversely, when strength is a factual question, summary judgment and similar dispositive motion practice are incredibly difficult. For trademark owners asserting less distinctive, suggestive marks, the Second Circuit’s approach creates a uniquely unfriendly forum because a judge alone may find their mark lacks inherent strength as a matter of law before the claim ever reaches a jury.

The Supreme Court invited the Solicitor General to contribute the views of the United. States. In its brief, the Solicitor General agreed with RiseandShine that the Second Circuit’s treatment of inherent strength as a pure question of law to be decided by the Court. Rather, citing Hana Financial, Inc. v. Hana Bank, 574 U.S. 418, 420 (2015), inquiries operating from the perspective of any ordinary purchaser or consumer should be entrusted to a jury. Yet, the Solicitor General recommended denial of the writ of certiorari. Agreeing with Pepsi, the Solicitor General wrote that it was unclear whether the Second Circuit’s error was outcome-determinative because other factors in the likelihood of confusion analysis went against RiseandShine.

What the Supreme Court’s Decision Could Mean

Despite the Solicitor General’s recommendation, the Supreme Court granted certiorari. The matter is likely to heard early in the October 2026 term. Although inherent strength is only one factor in the likelihood-of-confusion analysis, the Court’s resolution may expand beyond this single element. The Supreme Court has never directly reviewed the multifactor likelihood of confusion test despite variation among the circuits, and its ruling here could establish a broader principle governing which components of that test belong to the judge and which to the jury. Trademark litigators should prepare now (e.g., reassessing forum selection strategies, the role of consumer-survey evidence at summary judgment, and how to frame strength arguments) because the outcome may alter the procedural landscape in which infringement claims survive or fall before trial.

Special thanks to Kaley Baronne, LSU Law Class of 2027, for her assistance in preparing this post.

Jessica Engler is a partner practicing in all aspects of intellectual property, data privacy, and compliance, and serves as Chair of Kean Miller’s Data Privacy & Cybersecurity practice. A registered patent attorney, Jessica advises clients on protecting, enforcing, and maximizing the value of their intellectual property assets, including patents, trademarks, trade secrets, and copyrights. She regularly counsels businesses on trademark and patent matters, intellectual property disputes, and emerging legal issues affecting innovative and highly regulated industries.