INTA Calls on the U.S. Supreme Court to Hold that Trademark Strength Must Be Decided by a Jury

New York, New York—September 16, 2026—The International Trademark Association (INTA) filed an amicus brief with the United States Supreme Court in RiseandShine Corp. dba Rise Brewing v. PepsiCo, Inc., No. 24-1016, urging the Court to hold that when a jury trial has been requested and when the facts do not warrant entry of summary judgment or judgment as a matter of law, the question regarding the strength of the mark must be decided by a jury.

Rise Brewing sued PepsiCo for trademark infringement in the U.S. District Court for the Southern District of New York, arguing that PepsiCo’s use of “RISE” created a likelihood of reverse confusion. Central to the case was whether Rise Brewing’s RISE mark was strong, which is a factor in a court’s likelihood of confusion analysis. In granting Rise Brewing’s motion for a preliminary injunction, the Court treated mark strength as a factual question and found the RISE mark suggestive and sufficiently strong to favor Rise Brewing.

On PepsiCo’s interlocutory appeal, the U.S. Court of Appeals for the Second Circuit reversed, holding as a matter of law that Rise Brewing’s RISE mark was inherently weak. On remand, the District Court found, inter alia, that it was bound by the Second Circuit’s previous holding that the RISE mark was, as a matter of law, an inherently weak mark for a coffee brand and entered judgment in favor of PepsiCo. Rise Brewing appealed the judgment and the Second Circuit affirmed the District Court’s grant of summary judgment. Rise Brewing petitioned the Supreme Court for certiorari and, on June 29, 2026, the Supreme Court granted certiorari to review the following: “Whether trademark strength is a question of fact in a likelihood of confusion analysis under 15 U.S.C. § 1114.”

In its brief, INTA argued that the Second Circuit stood alone as the only circuit that treats any component of the “strength of the mark” analysis as a pure legal issue and that the Second Circuit’s recent holding that the conceptual strength prong of the strength-of-the-mark analysis is a question of law, not fact, was out of step with Supreme Court precedent, citing Hana Fin., Inc. v. Hana Bank, 574 U.S. 418, 422 (2015) and United States Patent and Trademark Office v. Booking.com B. V., 591 U.S. 549, 563 & 563 n.6 (2020). INTA further argued that fact-intensive questions—such as an ordinary consumer’s perception of a trademark, the crowdedness of a field of third-party marks, and the strength of a trademark—are traditionally and correctly considered questions for a factfinder.

 About the International Trademark Association:  
The International Trademark Association (INTA) is a global association of brand owners and intellectual property (IP) professionals committed to elevating the understanding of and respect for IP rights to foster consumer trust, economic growth, and societal transformation. Members include more than 6,700 organizations, representing more than 39,000 individuals (trademark owners, professionals, and academics) from 167 jurisdictions, who benefit from the Association’s global trademark resources, policy development, education and training, and international network. Founded in 1878, INTA is headquartered in New York City, with offices in Beijing, Brussels, Dubai, Santiago, Singapore, and the Washington, D.C., Metro Area, and representatives in Nairobi and New Delhi. For more information, visit inta.org.

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Media Contact:
Jean-Claude Darné
Managing Director, Marketing and Communications
212-642-1774
[email protected]