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Pepsi wins appeal in trademark fight over 'Mtn Dew Rise' name

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* Rise Brewing said Pepsi's energy drink would cause confusion

* 2nd Circuit said Rise's case not strong enough to justify trademark ban

By Blake Brittain

(Reuters) - A U.S. appeals court on Friday overturned a ruling that had blocked PepsiCo Inc from using the name "Mtn Dew Rise" on energy drinks due to potential confusion with canned-coffee maker Rise Brewing.

Rise Brewing's "Rise" trademark was not strong enough or similar enough to Pepsi's to justify the order, a unanimous 2nd U.S. Circuit Court of Appeals panel said.

The companies and their attorneys did not immediately respond to requests for comment.

Stamford, Connecticut-based Rise sued https://www.reuters.com/legal/transactional/pepsico-sued-by-rise-coffee-maker-over-morning-energy-drink-2021-06-16 Pepsi for trademark infringement last June, arguing Pepsi was trying to squeeze it out of the canned-drink market by flooding it with similarly named products. U.S. District Judge Lorna Schofield said https://www.reuters.com/legal/transactional/pepsico-blocked-using-rise-name-dispute-with-coffee-co-2021-11-04 in November that Rise was likely to win on its claims, and barred Pepsi from using "Mtn Dew Rise" during the case.

2nd Circuit judge Pierre Leval said in Friday's opinion that Schofield's decision was based on "two significant errors."

The appeals court said Schofield incorrectly found that Rise Brewing's "Rise" mark was strong. The lower court "failed to note that the strong logical associations between 'Rise' and coffee" undermine the mark's distinctiveness, Leval said.

Leval also noted that there were already many "Rise" trademarks covering coffee drinks and similar products when Rise Brewing started using its name.

"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," Leval said.

Schofield also should not have found that the trademarks were similar enough to cause consumer confusion, Leval said.

The "only notable similarity" between the products' branding was the use of the word "Rise" in large bold letters, and their differences were "far more notable," Leval said.

The case is Rise Brewing 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:

'Mtn Dew Rise' doesn't flout coffee trademark, Pepsi tells appeals court https://www.reuters.com/legal/litigation/mtn-dew-rise-doesnt-flout-coffee-trademark-pepsi-tells-appeals-court-2022-06-01

PepsiCo blocked from using 'Rise' name in dispute with coffee co https://www.reuters.com/legal/transactional/pepsico-blocked-using-rise-name-dispute-with-coffee-co-2021-11-04

PepsiCo sued by Rise coffee maker over morning energy drink https://www.reuters.com/legal/transactional/pepsico-sued-by-rise-coffee-maker-over-morning-energy-drink-2021-06-16