On June 29, the Supreme Court granted certiorari in RiseandShine Corp. v. PepsiCo, No. 24-1016. If you practice trademark law, this is the case you will be hearing about for the next year, and it deserves the attention. For the first time, the Court has agreed to look inside the likelihood-of-confusion test itself. Every prior trip to the Court has circled the test: protectability, tacking, preclusion, remedies, registration, expressive-use filters. This one asks how the test is operated, factor by factor, and by whom.
A quick orientation. RiseandShine brews canned nitro cold brew under the mark RISE. In 2021, PepsiCo launched Mtn Dew Rise Energy, and RiseandShine sued on the theory that morning-drink shoppers would take Pepsi’s can for a RISE line extension. The district court heard the evidence, found the RISE mark strong enough to matter, and entered a preliminary injunction. The Second Circuit reversed and called the mistake an error of law: strength, in that circuit, carries “a considerable component of law,” and the panel graded the mark for itself, finding RISE inherently weak. That legal grade became law of the case, carried the summary judgment that followed, and survived the appeal that ended the case.
The question presented is a single line: whether trademark strength is a question of fact in a likelihood-of-confusion analysis under 15 U.S.C. § 1114. Twelve circuits treat strength as a question of fact, typically for a jury. The Second Circuit stands alone in grading it as law.
Two things make the grant unusual. First, the Solicitor General, invited to weigh in, told the Court the Second Circuit was wrong and still recommended denial, reasoning that strength is one sub-factor among eight and unlikely to change outcomes. The Court granted anyway. Second, both sides are arguing about the jury’s province, and that is where the empirical record has something to say.
The Question Beneath the Question
Put the two positions side by side and notice what they share. The petitioner wants strength in the jury box. The Second Circuit wants it on the bench. Both assume a trial is coming. My new essay, The Missing Jury: Fact, Law, and Who Actually Decides Trademark Confusion, measures that assumption against the docket.
Across 10,977 federal likelihood-of-confusion opinions, judges made 97.96% of merits confusion determinations. Juries made 2.04%, which is 144 opinions. The strength factor specifically, the dial the Court has now agreed to allocate, reached a jury 69 times out of 3,383 gradings. And the opinion data are, if anything, generous to the jury: the Administrative Office’s own termination tables show that in fiscal 2025, twenty-seven trademark cases in the entire federal system reached a jury, out of 3,851 terminations. That is 0.70%.
The cases have been piling up for sixty-five years. Academics have been counting for twenty. Barton Beebe’s 2006 study coded five procedural postures and needed no box for a jury verdict. A 2010 replication in the Southern District of New York found the same thing. Daryl Lim ran the count in 2022 and said it plainly: the conventional wisdom that confusion cases generally require jury determination is untrue. My corpus extends the count more than thirtyfold over the largest earlier study, and the answer sharpens each time.
What the Court Is Actually Allocating
If the jury decides one case in fifty, then “question of fact for the jury” is, in operation, a rule about summary judgment. It tells the judge that strength belongs to the hypothetical reasonable jury and may be taken from it only when no reasonable factfinder could disagree. “Question of law” tells the judge the grade is hers, portable across cases and reviewable de novo, which is exactly the mechanism that decided RiseandShine itself: a factual grade made on evidence at the injunction stage, converted into law, and insulated from every later factual argument.
Either way, the decision-maker being regulated is a judge. The real choice is between standards of judicial self-restraint. The merits briefs owe the Court two answers: what a reasonable-jury screen means for a factor courts grade intuitively, and what a “legal” strength grade is made of when no two records present the same mark.
There is also a question hiding inside the question. “Strength” bundles two different jobs: assessing the mark on a record (how distinctive is RISE, on this evidence) and deciding what that assessment does inside the multifactor analysis (how the factors combine). Those two jobs may not deserve the same label. A Court looking for a clean line could treat the assessment as fact and the composition of the test as law, and this case gives it a vehicle to say so. Whether the merits teams invite that move is worth watching. And who knows, maybe an amicus will make the argument for them.
The full essay is on SSRN here, and it is a fast read as these things go. Merits briefs land over the summer. I will check back in when they do.
- Prof. Reichert