![]() "It doesn’t to me really say much very much given the size of the U.S. Publicity, however, "is not about the adherent strength of the mark but only about acquired strength," Leval continued. PepsiCo noted as much in its appeal brief, saying Rise Brewing had "expressly relied on the 'crowded field' doctrine, which recognizes that where multiple companies use a common term in a particular category, consumers will be 'able to distinguish between different marks based on small differences in the marks' and will not be confused unless the overall commercial impression, as encountered by consumers in the marketplace, is essentially identical."Īs to the strength of the mark, Leval noted that Judge Schofield gave "huge importance to the fact that the coffee drink had spent $17 million on publicity." Now you’re saying there’s no room for another, only you can have it.” ![]() "And you eventually prevailed by changing it from Rise Coffee to Rise Brewing on the argument there was room for one more. “When you first applied for trademark, you were rejected on the grounds that were already a number of Rise, especially with respect with coffee," Leval said. Judge Leval appeared vexed in particular that Rise would claim infringement despite having entered the market “with open eyes,” knowing that the coffee and beverage field was filled with other “Rise”-branded drinks. “This seems to me to be a very weak mark, as a matter of law," he continued. Rise Brewing should have anticipated such consumer confusion, Leval chided, because that is a “risk that one takes on when you choose a weak mark.” Circuit Judge Pierre Leval, a Clinton appointee who in 1990 penned an influential analysis on the transformative-use doctrine for Harvard Law Review titled “Toward a Fair Use Standard.” The argument made little impression, however, on U.S. Paul Tanck, an attorney for the coffee company with the firm Alston & Bird, urged the Second Circuit to affirm, telling the court Wednesday that “there was actual confusion” among shoppers who saw the two Rise-branded drinks near each other on store shelves where coffee drinks, energy drinks and coffee-flavored energy drinks commingled. District Judge Lorna Schofield warned specifically that Rise Brewing’s business could face an "existential threat" from Mountain Dew's product. PepsiCo dropped the word "Rise" from its Mtn Dew Rise Energy product roughly two weeks after a New York federal judge ruled in November that drink was likely to confuse customers when placed on the same store shelves as wares from the canned coffee company Rise Brewing. MANHATTAN (CN) - The Second Circuit looked ready Wednesday to lift the injunction that forced parent company PepsiCo to rename its new Mountain Dew energy drink last year. ![]()
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