RiseandShine Corporation v. PepsiCo, Inc.
No. 24-1016 · October Term 2026 · Economic Activity
Expected vote 6–3 for RiseandShine Corporation. Chance of a unanimous ruling 45%.
Before oral argument the model knows only the case's structure: the issue area, which way the lower court ruled, and each justice's record on both. That is not enough to separate cases, so every unargued case carries the petitioner's base rate. The transcript features arrive within days of argument and the number becomes a call.
The case
Rise Brewing, a company selling canned nitro-brewed coffee, is suing PepsiCo, Inc. for trademark infringement, alleging that PepsiCo's "MTN DEW RISE ENERGY" drink creates consumer confusion. The Second Circuit Court of Appeals vacated a preliminary injunction for Rise Brewing and ultimately granted summary judgment to PepsiCo, holding that trademark strength is a question of law. The Supreme Court must now decide whether trademark strength, a key factor in determining likelihood of confusion, is a question of fact or a question of law.
- Whether trademark strength is a question of fact or a question of law in a likelihood-of-confusion analysis under 15 U.S.C. § 1114.
- This case will clarify the standard of review for assessing trademark strength, impacting how lower courts evaluate infringement claims.
- A ruling for Rise Brewing would align the Second Circuit with the twelve other circuits that treat trademark strength as a factual matter, potentially making it easier for trademark holders to protect their brands.
- The decision will influence the balance between judicial oversight and jury determination in trademark disputes.
AI brief written by gemini-2.5-flash from the questions presented and the Oyez facts on 2026-10-02. Commentary only; it is not an input to the model.
Question presented, as filed
Courts in every circuit consider several factors in determining whether an alleged trademark infringer's use "is likely to cause confusion" under 15 U.S.C. § 1114. Chief among those factors is the trademark's strength, that is, its level of distinctiveness. Twelve circuits consider trademark strength an issue of fact. The Second Circuit stands alone in considering it a question of law. The question presented is: Whether trademark strength is a question of fact in a likelihood-of-confusion analysis under 15 U.S.C. § 1114.
Facts of the case (Oyez)
Rise Brewing was founded in 2014 and built a national brand selling canned nitro-brewed coffee under registered “RISE” marks, investing roughly $17.5 million in advertising and earning consumer awards including People Magazine's 2019 “Best Canned Coffee.” PepsiCo, which had previously met with Rise Brewing’s founders as a potential acquisition target, chose instead to launch its own canned energy drink in March 2021 under the mark “MTN DEW RISE ENERGY,” displaying the word “RISE” in large capital letters across the upper third of the can—matching the visual format of Rise Brewing’s product. Witness testimony confirmed that consumer confusion between the two products was the “norm, not the exception,” with customers ordering Rise Brewing’s coffee and receiving PepsiCo’s product instead. Rise Brewing sued PepsiCo for trademark infringement, arguing that PepsiCo’s use of “RISE” created a likelihood of reverse confusion—consumers mistakenly believing Rise Brewing’s coffee was affiliated with or produced by PepsiCo. Central to the litigation was how to assess the strength of the RISE marks, which a court must weigh as part of its likelihood-of-confusion analysis: the district court treated mark strength as a factual matter and found the RISE marks sufficiently strong to favor Rise Brewing, while PepsiCo argued the marks were inherently weak and thus entitled to only minimal protection. The district court granted Rise Brewing a preliminary injunction in November 2021, finding the RISE marks’ inherent and acquired strength supported a likelihood of confusion, but the U.S. Court of Appeals for the Second Circuit vacated the injunction in July 2022, holding as a matter of law that the RISE marks were inherently weak. On remand, the district court entered summary judgment for PepsiCo in August 2023, treating itself as bound by the Second Circuit's legal determination on mark strength, and the Second Circuit affirmed that judgment in December 2024, reaffirming that a mark’s inherent strength is a legal question for judges to decide de novo.
The nine
Each justice's predicted vote and the record behind it: how often they have voted for the petitioner overall, in Economic Activity cases, and when the lower court ruled conservative; and, once argued, how many questions they put to each side (the side a justice questions more tends to lose their vote). The note under each row is the AI brief's reading, commentary rather than model input.
| Justice | Predicted | Overall | This issue | Lower court conservative | At argument |
|---|---|---|---|---|---|
John G. Roberts Republican appointee · since OT2005 Chief Justice Roberts often emphasizes judicial efficiency and consistency across circuits. His vote may hinge on which approach he believes offers greater clarity and predictability in trademark law. | 63% RiseandShine Corporation | 68% for the petitioner · 1,512 votes | 68% Economic Activity · 328 votes | 61% lower court conservative · 734 votes | not yet argued |
Clarence Thomas Republican appointee · since OT1991 Justice Thomas frequently favors originalism and textualism. His analysis would likely focus on the plain meaning of 15 U.S.C. § 1114 and whether it implicitly or explicitly assigns trademark strength as a question of fact or law. | 63% RiseandShine Corporation | 59% for the petitioner · 2,801 votes | 62% Economic Activity · 555 votes | 43% lower court conservative · 1,365 votes | not yet argued |
Samuel A. Alito Republican appointee · since OT2005 Justice Alito tends to be a proponent of judicial restraint and may lean towards upholding established legal frameworks unless there is a clear constitutional or statutory reason to overturn them. He may consider the practical implications of reclassifying trademark strength. | 63% RiseandShine Corporation | 62% for the petitioner · 1,469 votes | 67% Economic Activity · 322 votes | 48% lower court conservative · 722 votes | not yet argued |
Sonia Sotomayor Democratic appointee · since OT2009 Justice Sotomayor often considers the real-world impact of legal decisions, particularly on smaller entities. She may be sensitive to the potential for larger corporations to leverage legal classifications to their advantage against smaller businesses like Rise Brewing. | 66% RiseandShine Corporation | 61% for the petitioner · 1,192 votes | 58% Economic Activity · 264 votes | 76% lower court conservative · 594 votes | not yet argued |
Elena Kagan Democratic appointee · since OT2010 Justice Kagan often seeks practical and workable solutions in her jurisprudence. She may consider which classification of trademark strength—fact or law—leads to more consistent and fair outcomes in trademark litigation. | 66% RiseandShine Corporation | 63% for the petitioner · 1,072 votes | 59% Economic Activity · 249 votes | 75% lower court conservative · 543 votes | not yet argued |
Neil M. Gorsuch Republican appointee · since OT2016 Justice Gorsuch is known for his emphasis on statutory interpretation and the separation of powers. He may scrutinize whether the Second Circuit's approach oversteps judicial bounds by reclassifying what other circuits consider a factual determination. | 63% RiseandShine Corporation | 65% for the petitioner · 592 votes | 60% Economic Activity · 141 votes | 59% lower court conservative · 286 votes | not yet argued |
Brett M. Kavanaugh Republican appointee · since OT2018 Justice Kavanaugh often looks for clear rules and adherence to precedent. He may consider the importance of uniformity among the circuits and whether the Second Circuit's outlier position creates undue complexity or unfairness. | 63% RiseandShine Corporation | 69% for the petitioner · 498 votes | 68% Economic Activity · 123 votes | 62% lower court conservative · 244 votes | not yet argued |
Amy Coney Barrett Republican appointee · since OT2020 Justice Barrett often focuses on textualism and original public meaning. Her analysis would likely center on the statutory language of the Lanham Act and whether it supports treating trademark strength as a question of fact or law. | 63% RiseandShine Corporation | 66% for the petitioner · 360 votes | 65% Economic Activity · 85 votes | 60% lower court conservative · 178 votes | not yet argued |
Ketanji Brown Jackson Democratic appointee · since OT2022 Justice Jackson often brings a perspective that considers the practical application of law and its effects on various parties. She may be inclined to support an approach that provides a more robust and equitable assessment of trademark protection, especially for smaller businesses. | 68% RiseandShine Corporation | 59% for the petitioner · 244 votes | 55% Economic Activity · 62 votes | 80% lower court conservative · 127 votes | not yet argued |
Rates are each justice's own participation record in the Supreme Court Database, the same history the model trains on; a rate on fewer than five votes is not shown. The predicted vote is VotePredictor SCOTUS' per-justice probability from the served model, which also reads the bench-wide transcript signal and how long each side held the podium.
Every call this term, justice by justice · how the model is built and its record. Data as of 2026-10-02.