Intellectual Property Litigation: Supreme Court Takes Up Circuit Split Over Trademark Strength Analysis

Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “Is Trademark Strength a Question of Law or Fact? The Supreme Court Takes Up the Circuit Split,” appeared in the New York Law Journal. The authors discuss the U.S. Supreme Court’s decision to grant certiorari in RiseandShine Corp. v. PepsiCo, Inc., a trademark dispute that could clarify whether a mark’s inherent strength, or distinctiveness, is a question of law for courts or a question of fact for juries. The case arises from a challenge brought by RiseandShine, maker of RISE coffee products, against PepsiCo’s MTN DEW RISE ENERGY beverage. While the Second Circuit has treated inherent trademark strength as a legal question, RiseandShine argues that most other circuits view the issue as factual because it depends on consumer perception. The Supreme Court’s ruling could affect how trademark disputes are resolved, including the availability of summary judgment and the roles of judges and juries in likelihood-of-confusion analyses. Litigation associate Zhen Lin and summer associate Elise Belluccia assisted in the preparation of this column.

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