A New York federal judge yesterday dismissed a years-long trademark suit from nitro cold brew maker RISE Brewing Co. accusing PepsiCo of using a “confusingly similar” name for its MTN DEW Rise morning energy drink.
U.S. District Judge Lorna Schofield granted a summary judgment in favor of PepsiCo, stating that RISE Brewing’s mark is “inherently weak” and “commands a narrow scope of protection.”
“The circuit compared the two products […] in size, proportion, style, color and artwork and overall appearances of the cans to find that the differences appear far more notable than the similarities,” reads the court order.
The suit, filed in the U.S. District Court for the Northern District of Illinois in 2021, alleged that PepsiCo violated the canned coffee brand’s trademark when it launched MTN DEW Rise Energy. The fruit-flavored energy drink, launched earlier that year and accompanied by a national marketing campaign with NBA star LeBron James, is positioned as a better-for-you energy drink designed for morning consumption.
In the original complaint, RISE Brewing claims it contacted PepsiCo both before and after the release of MTN DEW Rise Energy requesting the conglomerate change the product’s name. PepsiCo allegedly refused, “claiming that no confusion was likely as its drink is a morning caffeine drink and not a coffee drink” and that its use of the MTN DEW brand name “should absolve them of any wrongdoing.”
In November 2021, Schofield preliminarily blocked PepsiCo from using the name MTN DEW Rise Energy while the trademark infringement battle continued to play out. However, In July 2022, the 2nd U.S. Circuit of Appeals overturned the lower court decision, finding that the lower court had “erred in its evaluation of what is the most important factor – the strength of Plaintiff’s mark – as well as its finding of similarity in the appearance of the products.”
PepsiCo has yet to revert its MTN DEW Energy line back to its previous name. Currently available in six flavors – Orange Breeze, Strawberry Melon Sharp, Pomegranate Blue Burst, Cherry Lime Lift, Major Melon and Pitch Black – the collection retails for $22.99 per 12-pack of 16 oz. cans. Each can boasts 180mg of caffeine.
According to an analysis of NielsenIQ data by Goldman Sachs Equity Research, PepsiCo (MTN DEW and Rockstar) reported dollar sales of +7.5% with a volume drop of -9.2% in the two-week period ending July 15.
RISE Brewing Co. did not respond to BevNET’s request for comment by the time of publication.