"In the context of this case, survey results may be particularly unreliable," Schofield said, considering that the marks have only been used in commerce simultaneously for a short time. Schofield also credited testimony from witnesses who said they had seen confusion in stores, and questioned Pepsi's survey evidence. The court said the companies' trademarks both "highlight the single word 'Rise'" and are displayed on their cans in similar ways, and that their products are similar "canned, caffeinated drinks." Schofield said Wednesday that Rise Brewing had provided enough evidence of likely confusion and irreparable harm to justify the injunction. Pepsi also argued that Rise Brewing didn't show it was harmed, and that an injunction would cause Pepsi to incur significant rebranding costs, lost sales, and "unquantifiable losses" to its reputation and goodwill. PepsiCo responded to Rise Brewing's request for a preliminary injunction in August, arguing that expert surveys indicated confusion wasn't likely, which Pepsi said wasn't surprising because Mtn Dew Rise is a "fruit-flavored energy drink" and not a coffee drink. 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 also distributes Starbucks coffee drinks, and Rise Brewing said it knew the launch of Mtn Dew Rise would "destroy a leading competitor." Stamford, Conn.-based Rise Brewing sued PepsiCo in June for trademark infringement. PepsiCo also owns the Rockstar and Mountain Dew Amp energy drink brands and has been a distributor of Bang Energy drinks. Timothy Durst of O'Melveny & Myers represents Pepsi.
Rise Brewing's attorney Jason Rosenberg of Alston & Bird said he and the company were "incredibly pleased" with the decision. Schofield's order bars PepsiCo from using the Mtn Dew Rise name commercially and from selling products under any other name that would be confusingly similar to Rise Brewing's "Rise" trademarks while the lawsuit is proceeding.
District Judge Lorna Schofield said in a Wednesday order granting Rise Brewing's bid for a preliminary injunction that it was likely to succeed on claims that PepsiCo's drink, launched in March, will cause customer confusion, and presented credible evidence that Mtn Dew Rise poses an "existential threat" to its business.
(Reuters) - PepsiCo Inc must stop using the "Mtn Dew Rise Energy" name for its morning energy drink because of a trademark dispute with canned-coffee maker Rise Brewing, a Manhattan federal court has ruled.
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