SCOTUS to Rule on Whether Trademark Strength Is Judge or Jury Question
Trademark owners and accused infringers must track this Supreme Court case, as its ruling will determine whether inherent mark strength is decided by judges or juries, directly changing summary judgment eligibility and litigation costs for infringement claims.
The Supreme Court granted certiorari in Rise and Shine Corp. v. PepsiCo to resolve a circuit split over whether a trademark’s inherent strength, a core component of likelihood-of-confusion analyses, is a question of law for judges or a question of fact for juries. The Second Circuit currently treats the inquiry as a legal question, permitting summary judgment resolutions before trial, while multiple other circuits classify it as a factual issue requiring jury consideration. The ruling will standardize federal trademark litigation practice, impact how often infringement claims proceed to trial, shape forum-selection strategies, and affect costs tied to discovery, expert testimony, and consumer perception surveys for all parties in trademark disputes.