![]() In connection with her analysis of the Polaroid factors, Judge Schofield noted that the correct premise in a “strong reverse confusion case” is that “a mark that is inherently strong, but not strongly associated with the plaintiff (i.e., one that has not acquired a secondary meaning), is both deserving of protection and is likely to be the subject of consumer confusion.” In such a case, “the first Polaroid factor tips strongly in favor of a plaintiff who holds such a mark,” according to judge, who found that Rise Brewing’s mark is “inherently weak.” Rise Brewing offers “some evidence of acquired distinctiveness” (namely, evidence of advertising spending and product awards, as well as a declaration from its CEO), but the court ultimately found that “the record as a whole with respect to acquired meaning … does not overcome the inherent weakness of the mark.”Īgainst that background, and given the Second Circuit’s finding “as a matter of law that mark is weak, its conclusion that it is ‘clear error’ to find that the parties’ products are similar, and its statement that ‘o the extent that use of its marks caused any likelihood of confusion … because chose a weak mark in a crowded field,’” the court granted summary judgment to PepsiCo. The injunction decision was reversed on appeal to last year. The Second Circuit disagreed with the lower court in terms of the strength of Rise Brewing’s mark, finding that associations between the word “Rise” and coffee make it a suggestive mark entitled to narrow protection.) (The decision follows from an earlier win for Rise Brewing when the district court awarded it a preliminary injunction, barring PepsiCo from marketing its “Mtn DEW Rise Energy” energy drink. After analyzing the Polaroid factors, the judge determined that “there is no genuine question of fact to be put to a jury on the likelihood of consumer confusion,” and thus, PepsiCo is entitled to summary judgment on its trademark and unfair competition claims. District Court for the Southern District of New York granted the Mountain Dew-maker’s motion for summary judgment. Siding with PepsiCo in an order on August 2, Judge Lorna Schofield of the U.S. In the trademark infringement complaint that it filed against PepsiCo back in 2021, Stamford, Connecticut-based Rise Brewing argued that the beverage behemoth had been using its “immense marketplace weight and nationwide distribution network to flood the market” with similarly-named products, namely, its “Mtn Dew Rise” energy drink, that are not only likely to cause confusion among consumers about the source of the products but may also serve to “squeeze senior user Rise Brewing out of the market” in the process. ![]() In 2018, Pepsi launched Mtn Dew Amp Game Fuel, aimed at video gamers.PepsiCo has beaten a lawsuit waged against it for allegedly co-opting the trademark of a smaller canned-coffee company, Rise Brewing, by way of its “Mtn Dew Rise” energy drink. According to Euromonitor, Mountain Dew holds about 7% market share in carbonated soft drinks, putting it in fifth place. The company has also been leaning on the Mountain Dew brand, which is known for its high caffeine content, to launch new energy drinks. In early 2020, Pepsi bought Rockstar Energy for $3.85 billion and revamped the brand. Energy drinks generated $14.15 billion in retail sales last year, according to Euromonitor International. wanted to stand for a flavor-forward drink," said Torres.Ĭoca-Cola and Pepsi have been pushing into energy drinks as soda consumption has fallen. "There's a lot of rejecters out there that think that energy drinks don't taste good, so we. The new line is available in six flavors: Pomegranate Blue Burst, Orange Breeze, Strawberry Melon Spark, Tropical Sunrise, Berry Blitz and Peach Mango Dawn. Mtn Dew Rise Energy will also help Pepsi compete against upstarts in the category that are touting healthier energy drinks such as MatchaBar or Mati Energy, which derive a caffeine punch from tea. Personal Loans for 670 Credit Score or Lowerįabiola Torres, chief marketing officer of PepsiCo Energy, said the company knows that it's got stiff competition in the energy-drink category, so it wanted to create a product line that would appeal to more than just the typical consumer who buys energy drinks. Personal Loans for 580 Credit Score or Lower Best Debt Consolidation Loans for Bad Credit ![]()
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