(Reuters) – PepsiCo Inc should cease using the “Mtn Dew Rise Energy” name for its morning power drink due to a trademark dispute with canned-coffee maker Rise Brewing, a Manhattan federal court docket has dominated.
U.S. District Choose Lorna Schofield stated in a Wednesday order granting Rise Brewing’s bid for a preliminary injunction that it was more likely to succeed on claims that PepsiCo’s drink, launched in March, will trigger buyer confusion, and offered credible proof that Mtn Dew Rise poses an “existential threat” to its enterprise.
Schofield’s order bars PepsiCo from using the Mtn Dew Rise name commercially and from promoting merchandise beneath some other name that might be confusingly much like Rise Brewing’s “Rise” emblems whereas the lawsuit is continuing.
Rise Brewing’s lawyer Jason Rosenberg of Alston & Chicken stated he and the corporate have been “incredibly pleased” with the choice.
PepsiCo declined to remark. Timothy Durst of O’Melveny & Myers represents Pepsi.
PepsiCo additionally owns the Rockstar, Bang, and Mountain Dew Amp power drink manufacturers.
Stamford, Conn.-based Rise Brewing sued PepsiCo in June for trademark infringement. It argued Mtn Dew Rise was “designed to specifically target the morning coffee drinker” and “marketed as a morning caffeinated drink to replace ready-to-drink coffee drinks such as Rise.” Pepsi additionally distributes Starbucks coffee drinks, and Rise Brewing stated it knew the launch of Mtn Dew Rise would “destroy a leading competitor.”
PepsiCo responded to Rise Brewing’s request for a preliminary injunction in August, arguing that skilled surveys indicated confusion wasn’t seemingly, which Pepsi stated wasn’t shocking as a result of Mtn Dew Rise is a “fruit-flavored energy drink” and never a coffee drink. Pepsi additionally argued that Rise Brewing did not present it was harmed, and that an injunction would trigger Pepsi to incur vital rebranding prices, misplaced gross sales, and “unquantifiable losses” to its repute and goodwill.
Schofield stated Wednesday that Rise Brewing had offered sufficient proof of seemingly confusion and irreparable hurt to justify the injunction.
The court docket stated the businesses’ emblems each “highlight the single word ‘Rise'” and are displayed on their cans in related methods, and that their merchandise are related “canned, caffeinated drinks.”
Schofield additionally credited testimony from witnesses who stated that they had seen confusion in shops, and questioned Pepsi’s survey proof.
“In the context of this case, survey results may be particularly unreliable,” Schofield stated, contemplating that the marks have solely been used in commerce concurrently for a short while.
Schofield additionally stated Rise Brewing had confirmed that it could endure substantial hurt with out an injunction, citing testimony that its company id was in danger if Pepsi “continues to saturate the market,” and noting an investor stopped investing in it due to seemingly confusion with Pepsi’s product.
The case is Rise Brewing v. PepsiCo Inc, U.S. District Court docket for the Southern District of New York, No. 1:21-cv-06324.
For Rise Brewing: Jason Rosenberg and Paul Tanck of Alston & Chicken
For Pepsi: Timothy Durst of O’Melveny & Myers
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Blake Brittain experiences on mental property legislation, together with patents, emblems, copyrights and commerce secrets and techniques. Attain him at [email protected]