• by Steve Ellwanger , November 8, 2021

A federal judge has issued a preliminary injunction barring PepsiCo Inc. from using the name Mtn Dew RISE Energy while a trademark-infringement lawsuit filed by Rise Brewing proceeds.

In her Nov. 3 ruling, U.S. District Judge Lorna Schofield in Manhattan said that Rise Brewing and parent Rise And Shine Brewing Corp. will likely prevail in its claims that Mtn Dew RISE infringes on Rise Brewing’s RISE trademark.

“Plaintiff is entitled to a preliminary injunction because Plaintiff has demonstrated irreparable harm, a likelihood of success on the merits of the federal copyright claim and that the public interest weighs in favor of granting the injunction,” Schofield wrote.

As previously reported, Rise Brewing sued PepsiCo in June in federal court in Illinois—three months after PepsiCo launched Mtn Dew RISE Energy.

The case was transferred to New York in July.

According to Rise Brewing, PepsiCo’s use of the identical product name RISE is harmful because it can cause consumers to be confused about the source of the parties' respective products.

Rise Brewing also alleges that PepsiCo’s actions have “destroyed Plaintiff’s reputation and goodwill and has impeded Plaintiff’s ability to raise capital from outside investors.”

Among other factors, the judge decided that Rise Brewing would likely prevail on its claim of consumer confusion “particularly because of the similarity between the two marks” and due to “the proximity of Defendant’s area of commerce to Plaintiff’s.”

Rise Brewing has submitted testimony showing that confusion extends to retailers.

In early March, an employee of Midwest grocery chain Mariano’s texted a Rise Brewing rep to indicate that the company had been selected for a “promotional opportunity.” The rep subsequently learned that the promotion was not for Rise Brewing but for “a new line of energy drinks by Pepsi called RISE.”

Documents filed in the case indicate that representatives of PepsiCo and Rise Brewing met in 2017, 2018 and 2019 “to discuss a potential partnership opportunity” but no business relationship ensued.

After Rise Brewing sent PepsiCo a cease-and-desist letter in January of 2021, lawyers for both companies communicated between January and April regarding a “licensing deal” that would have avoided litigation but did not happen.

In a filing in August, PepsiCo said that Rise Brewing had not “met its heavy burden of justifying an injunction” and that two surveys by “independent experts” showed “no likelihood of consumer confusion."

Last week’s injunction bars PepsiCo from using the “challenged mark” Mtn Dew RISE Energy in connection with the promotion, sale or distribution of single-use, canned energy beverages in the United Statews.

It also prevents PepsiCo from citing Mtn Dew RISE Energy in advertisements.

The judge gave PepsiCo eight days to report on how it has complied with the injunction’s conditions.

This morning, Mtn Dew RISE Energy videos featuring LeBron James were still posted on YouTube.

Marketing Daily reached out to  PepsiCo but had not heard back by deadline.

UPDATE as of Nov. 9:

A Rise Brewing rep tells Marketing Daily that the company and its lawyers are “incredibly pleased with the court’s well-reasoned and just decision to preliminarily enjoin PepsiCo’s Mtn Dew RISE drink.

"In its ruling, the court noted that Rise Brewing had proved ‘not only a likelihood of success on the merits…but also a clear or substantial likelihood of success on the merits,’ as well as finding that any harm to PepsiCo caused by the injunction is of its own making.”