Caffeinated beverage companies battle over RISE trademark. RISE BREWING v. PEPSICO

A trademark can be registered with the United States Patent and Trademark Office to strengthen the rights associated with a trademark, however registration is not required to begin using a trademark to brand products. Obtaining a right to a trademark law in the United States is based on using the trademark in commerce. The first person to use a trademark to brand products is considered the senior user and has priority over junior users of a trademark. If a junior trademark user brands products in a way that causes consumers to confuse the junior user’s products with the senior trademark user’s products, that can be considered trademark infringement. A trademark owner who feels that their trademark is being infringed upon can attempt to stop trademark infringement with an injunction and get monetary damages for trademark infringement which has occurred.

Trademark infringement is the unauthorized use of a trademark in connection with products in a manner that is likely to cause confusion, deception, or mistake about the source of the products. When an allegedly infringing mark is not identical to a trademark, the use of the mark may still qualify as an infringement if it is “confusingly similar” to the trademark. When a court is presented with a trademark infringement case and the two marks are not identical the Dupot factors are used to determine if there is a likelihood of confusion between two trademarks. Those factors are: 1) Strength of the senior user’s trademark, 2) Similarity of the trademarks, 3) Similarity of the products or services, 4) Likelihood that the senior user will bridge the gap, 5) The junior user’s intent in adopting the mark, 6) Evidence of actual confusion, 7) Sophistication of the buyers, 8) Quality of the junior user’s products or services, 9) related products and services.

RISEANDSHINE CORPORATION d/b/a RISE BREWING, vs. PEPSICO, INC., 1:21-cv-03198 (N.D.IL 2021) is an example of a senior user carefully policing the use of its trademark.

Plaintiff in this case is a small coffee company that sells a full line of canned, shelf-stable nitro cold brew coffee drinks. Plaintiff uses a “nitro cold brew” process, which infuses nitrogen into the brewing process to give coffee a foamy, creamy texture, without the bitterness of typical drip coffees. Plaintiff’s canned caffeine drinks are shelf-stable, and are sold on shelves alongside other shelf-stable canned energy drinks. Plaintiff has invested considerable
time and expense in marketing and ensuring that its branding is recognizable to consumers. An example of Plaintiff’s product is reproduced above on the left.

Defendant is a major multinational manufacturer and distributor of food and beverages. One of Defendant’s Brands is Mountain Dew, a citrus-flavored caffeinated soft drink. Mountain Dew is among the top five best-selling soft drinks in the United States. To target the early morning drink market Defendant created a new brand called Mtn Dew Rise. Mtn Dew RISE was intended to be sold alongside other energy drinks and canned coffee drinks, including RISE caffeine drinks, instead of being sold alongside other sodas. An example of Defendant’s product is show in the above image on the right.

Plaintiff filed suit against Defedant for trademark infringement. In the complain Plaintiff points out the similarities between the packaging, especially the emphasis of RISE on Defendant’s products. As evidence of actual confusion Plaintiff offers evidence of retailers calling them asking about a promotional display which was actually the Defendant’s display. Also employees of Defendant were placing Defendant’s product on shelf space at retailers in space reserved for Plaintiff’s products. Plaintiff claims that if Defendant is not enjoined from using the RISE trademark consumers will eventually thing Plaintiff is the infringer. Defendant has yet to answer the complaint.

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