In particular, on the heels of the district court dismissing the adult film company’s trademark infringement claims against Amazon, the Eleventh Circuit found that by treating the case as a straightforward infringement matter, the district court erred in its application of the likelihood of confusion factors. Court of Appeals for the Eleventh Circuit held that the case that Wreal lodged against Amazon – in which it argued that Amazon’s “Fire TV” trademark infringed its own “FyreTV” mark – should be tried before a jury. ![]() law to obliterate” a business that has been using the Meta name for more than ten years.Ī handful of other relatively recent reverse confusion matters – i.e., ones in which the plaintiff is typically a commercially smaller but more senior user of the mark, and the defendant is a commercially larger but more junior user – include … In that case, which is in its early stages in the Southern District of New York, Pryor Cashman-represented METAx, a small virtual reality-focused company, accuses the social media titan of “brazenly violat fundamental intellectual property rights enshrined in U.S. The win for PepsiCo follows somewhat closely from the filing of a reverse confusion case against Facebook and Instagram-owner Meta after its rebranding, for example. Mtn Dew Rise is, nonetheless, the latest in a string of cases, in which smaller entities have waged reverse confusion claims against larger market counterparts, to varying levels of success. While trademark infringement actions that center on allegations of reverse confusion are relatively rare compared to the much-more-frequent traditional forward-confusion trademark infringement cases, it is worth noting that the decision over Rise Brewing v. 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. 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.
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