SCOTUS Takes RiseandShine v. PepsiCo: Inherent Strength as Law or Fact
The Supreme Court granted review in RiseandShine Corp. v. PepsiCo, No. 24-1016, a circuit split over whether a trademark's inherent strength is a jury question of fact or a judicial question of law.
The U.S. Supreme Court has taken up RiseandShine Corporation v. PepsiCo, Inc., No. 24-1016, which asks whether the inherent strength of a trademark — whether the mark is inherently distinctive as conceived or only distinctive because of acquired meaning — is a question of fact for a jury or a question of law for the judge. The grant is intended to resolve a division among the courts of appeals over the applicable standard of review.
Practitioners have reason to care well beyond the beverage context. Inherent strength is a threshold gate in almost every trademark action: courts treating it as a factual question must send the issue to a jury, while courts applying the legal-question framework can resolve it on a motion to dismiss or for summary judgment. The outcome could therefore reshape early-stage motion practice, discovery sequencing, and settlement leverage across a wide range of matters involving major-firm clients in many sectors.
One caution: this briefing rests on a single law-firm alert, which does not confirm the grant date, which circuits are in conflict, or the full procedural posture. Counsel should verify the docket, the Court's disposition, and the timetable for merits briefing before relying on any particular detail. Watch for the decision in the current term and for amicus advocacy squarely addressing the competing formulations.