<\/p>\n This may seem theoretical, but it\u2019s not. Take the case of Rise Brewing Company v. PepsiCo, Inc <\/a>for instance. Rise Brewing Company<\/a> is a small-business nitro cold brew coffee company that has sold Rise canned cold-brew coffee<\/a> since 2014. Soda giant PepsiCo named and marketed one of their Mountain Dew energy drink products, \u201cMtn Dew Rise\u201d in March of 2021. Thinking there might be consumer confusion and a threat to their business, Rise Brewing Company sued PepsiCo in a trademark infringement<\/a> action.<\/p>\n Were they victorious? Yes! Fortunately for Rise Brewing Company, U.S. District Judge Lorna G. Schofield of the Southern District of New York entered a ruling<\/a> for a preliminary injunction against PepsiCo, stopping them from using the mark \u201cRISE\u201d in association with its soft drinks.<\/p>\n Let me explain why the Court correctly ruled. We\u2019ll first start by explaining what a trademark<\/a> (\u2122) is.<\/p>\n <\/p>\n Any Company CAN Have a TM<\/strong><\/p>\n A trademark<\/a> is a word, phrase, symbol, design, smell, taste, sound, or a combination of these things that work to identify a company\u2019s goods or services. For example, Rise Brewing Company\u2019s trademark is the word \u201cRISE\u201d. The company uses it to refer to their organic, canned coffee beverage. Trademarks can help build brand recognition through public perception of the company, create customer loyalty, and develop the company\u2019s reputation by promoting the company to investors.<\/p>\n What rights does a TM grant? Basically, it allows its owner to prevent others from using a similar or same mark on goods or services if there is likely confusion among consumers and the trademark is being used in commerce.<\/p>\n When a large company like PepsiCo launched its new canned caffeine drink with the identical product name, \u201cRISE,\u201d Rise Brewing Company filed suit<\/a> for trademark infringement. Trademark infringement occurs when another entity uses a trademark without authorization on or in connection with goods or services in a way that causes confusion about the source (origin) or sponsorship (affliation) of the goods or services.<\/p>\n <\/p>\n Fizzled Out: Pepsi Cannot Use \u2018Rise\u2019 for Their Mtn Dew \u2018Rise\u2019 <\/strong><\/p>\n In Rise Brewing Company\u2019s complaint<\/a>, they alleged PepsiCo\u2019s use of the RISE mark on their new product will create confusion among consumers as to the source of the parties\u2019 respective products. In other words, the claim is about so-called sponsorship confusion<\/a>. This means people might think that Pepsi sponsored the Rise coffee because Pepsi is the larger and more well-known company. In their answer<\/a>, PepsiCo argues that its \u201cMtn Dew Rise\u201d was a morning caffeine drink that was fruit-flavored and not a coffee drink, such that consumers would not be confused.<\/p>\n To analyze whether PepsiCo may be liable for reverse confusion, one must look to the relevant confusion factors<\/a> for sponsorship confusion: strength of the mark, similarity of mark, and actual consumer confusion if it\u2019s present.<\/p>\n <\/p>\n Strength of Rise Brewing Company\u2019s mark \u201cRISE\u201d: <\/strong><\/p>\n The strength of the trademark \u201crefers to the distinctiveness of the mark, or more precisely, its tendency to identify the good sold under the mark as emanating from a particular\u2026 source.\u201d McGregor-Doniger, Inc. v. Drizzle, Inc.<\/em><\/a>, 599 F. 2d 1126, 1131 (2d Cir. 1979). As the Judge Schofield noted, \u201cRISE\u201d is a suggestive mark because \u201cit evokes images of morning\u201d. A suggestive mark means it requires consumers, specifically the morning coffee drinker in this case, to use their imagination to associate the mark \u201cRISE\u201d with their nitro cold-brew coffee. While suggestive marks can be inherently distinctive, Judge Schofield also looked to market distinctiveness because \u201csuggestive marks are not necessarily distinct in the marketplace.\u201d Two Hands IP LLC, <\/em>2021 WL 4437975 at 7.<\/p>\n Market distinctiveness can be analyzed through six factors according to Car-Freshner Corp v. American Covers, LLC<\/em><\/a>: \u201cadvertising expenditures, consumer studies linking the mark to a source, unsolicited medica coverage of the product, sales success, attempts to plagiarize the mark, and the length and exclusivity of the mark\u2019s use.\u201d Judge Schofield reasoned that these factors leaned slightly in favor of Rise Brewing Company. First, Rise Brewing Company spent $17.5 million in promoting its \u201cRISE\u201d marks. It received awards for its products, and it was exclusively using the mark \u201cRISE\u201d for its canned caffeinated beverage before Pepsico\u2019s Mtn Dew Rise launched. While Rise Brewing Company did not provide any consumer studies or evidence as to Pepsico\u2019s attempts to plagiarize its marks, the Judge mentioned that the style of the mark \u201cRISE\u201d with its unique form and shape of the letters were taken by Pepsico. Thus, this first factor slightly favored Rise Brewing Company.<\/p>\n <\/p>\n Similarity of mark \u201cRISE\u201d: <\/strong><\/p>\n To access similarity of the marks, \u201ccourts look to the overall impression created by the logos and the context in which they are found and consider the totality of factors that could cause confusion among prospective purchasers.\u201d Gruner + Jahr USA Publ\u2019g, a Div. of Gruner + Jahr Printing & Publ\u2019g Co. v. Meredith Corp.<\/em><\/a>, 991 F.2d at 1078. Here, Judge Schofield observed that the appearance of the mark \u201cRISE\u201d is highlighted similarly on both Rise Brewing Company\u2019s and PepsiCo\u2019s cans in bold, bright color, all capital lettering. She mentioned how both parties have the mark \u201cRISE\u201d printed against a light background and how the mark \u201cis the dominant feature occupying the top third of the can.\u201d Judge Schofield determined this second factor favored Rise Brewing Company.<\/p>\n <\/p>\n Actual consumer confusion:<\/strong> Rise Brewing Company presented three separate testimonies regarding examples of actual confusion present. Judge Schofield declared this as another factor for Rise Brewing Company.<\/p>\n Overall, PepsiCo seems to have infringed Rise Brewing Company\u2019s \u201cRISE\u201d trademark per Judge Schofield\u2019s reasoning \u201cgiven the degree of similarity between Plaintiff\u2019s and Defendant\u2019s marks, the proximity of their areas of commerce, and credible testimony of actual confusion.” In the end, Judge Schofield held that Rise Brewing Company showed that the risk of reverse confusion was probable<\/a> and issued an injunction on PepsiCo.<\/p>\n Ahh caffeine, a craze in the coffee house, grocery store, and even the courtroom.<\/p>\n <\/p>\n Suet Lee<\/em> Can a large company infringe a smaller company\u2019s mark? Yes! This\u00a0is sometimes referred to as “reverse confusion,” where the small company is the first user and the large company is the later user. But, there can still be confusion among consumers. The larger company may use its money and resources (like ads) to infiltrate the smaller company\u2019s market with a similar mark on similar goods or services. <\/p>\n![\"\"](\"https:\/\/blogs.luc.edu\/ipbytes\/wp-content\/uploads\/2021\/12\/tabitha-turner-F0Wd4djYvSA-unsplash-scaled-1-216x300.jpg\")
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<\/p>\n
\nAssociate Blogger<\/em>
\nLoyola University Chicago School of Law, J.D. 2023<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"