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Mountain Dew ‘Rise’ Trademark Ban Draws Second Circuit Criticism

June 1, 2022, 9:59 PM

PepsiCo Inc. found some support at the Second Circuit for overturning an injunction blocking its “Mountain Dew Rise Energy” branding during oral argument Wednesday.

Riseandshine Corp., known as Rise Brewing, convinced a New York federal judge that Pepsi’s energy drink branding likely infringed its coffee’s branding.

The appeal tests how the circuit balances a shared dominant trademark element against claims that the common word at issue is highly suggestive and common to a broader industry.

Second Circuit Judge Pierre N. Leval said he was surprised Pepsi’s counsel didn’t focus more on “what seems to be the largest weakness” in the ...