'Mtn Dew Rise' doesn't flout coffee trademark, Pepsi tells appeals court

A view shows a plant of PepsiCo company in Azov in the Rostov region, Russia March 9, 2022. REUTERS/Sergey Pivovarov
  • Lower court blocked Pepsi from using "Mtn Dew Rise" after challenge from Rise Brewing
  • Appeals court judge says Rise's trademark is weak

(Reuters) - At least one judge on a U.S. appeals panel Wednesday appeared sympathetic to PepsiCo Inc's bid to end an injunction that halted its use of the "Mtn Dew Rise" name in a trademark lawsuit by the maker of "Rise" coffee drinks.

Senior Circuit Judge Pierre Leval during oral arguments criticized a lower court's finding that Rise Brewing's trademark was strong enough to justify the temporary ban on Pepsi's use of the name.

Stamford, Connecticut-based Rise sued Pepsi last June, arguing Pepsi was trying to squeeze it out of the canned-drink market by flooding it with similarly named products and causing customer confusion.

District Judge Lorna Schofield said in November that Rise was likely to succeed on its claims, and barred Pepsi from using the Mtn Dew Rise name while the lawsuit proceeds.

But Leval said Wednesday that Rise Brewing's trademark "seems to me to be a very weak mark as a matter of law."

"With your eyes open, you were entering into a field in which there were already a number of different 'Rises,'" Leval told Rise attorney Paul Tanck of Alston & Bird. Leval said Rise chose to adopt a weak trademark that suggested a drink to "make you rise and shine in the morning" instead of a stronger mark without an already-established meaning.

Tanck responded that the lower court decided the whole of Pepsi's marketing was likely to cause confusion after a "holistic analysis" of several factors. He said Pepsi had placed its drinks "side by side" with Rise's at gas stations and supermarkets, and noted similarities in the cans' typefaces, lettering and colors.

Pepsi's attorney Dale Cendali of Kirkland & Ellis said the companies' products were "startlingly different." She compared Pepsi's "big and bright and neon" energy drink cans with the "Mountain Dew" name to Rise's coffee drink with "none of those things."

Cendali also echoed Leval's statements on the term "Rise," arguing the company was "trying to monopolize that word beyond the area of its registration."

Senior Circuit Judge Denny Chin and Circuit Judge Steven Menashi were also on the panel.

The case is Riseandshine Corp v. PepsiCo Inc, 2nd U.S. Circuit Court of Appeals, No. 21-2786.

For Rise: Paul Tanck of Alston & Bird

For Pepsi: Dale Cendali of Kirkland & Ellis

Read more:

PepsiCo sued by Rise coffee maker over morning energy drink

PepsiCo blocked from using 'Rise' name in dispute with coffee co

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com