Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 1 of 37
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Plaintiff,
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`vs.
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`RISEANDSHINE CORPORATION d/b/a
`RISE BREWING
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`PEPSICO, INC.
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`Defendant.
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`CASE NO.: 1:21-cv-3198
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`JURY TRIAL DEMANDED
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`COMPLAINT
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`Plaintiff RiseandShine Corp. d/b/a Rise Brewing (“Rise Brewing”), by and through its
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`undersigned counsel, brings this action against Defendant PepsiCo, Inc. (“PepsiCo”), and in support
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`thereof alleges as follows:
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`NATURE AND BASIS OF THE ACTION
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`1.
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`Rise Brewing is a small but rapidly growing coffee company that, through hard work
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`and innovation, developed, and now markets and sells throughout the United States, a full line of
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`canned, shelf-stable nitro cold brew coffee drinks.
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`2.
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`Sold alongside other shelf-stable caffeinated drinks, Rise Brewing’s RISE-branded
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`products have gained a strong following among caffeine drinkers, and are particularly successful
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`with millennial and Gen-Z consumers, as well as others who prefer the mellow taste of nitro cold
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`brewed coffee over the more acidic, standard drip coffee.
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`3.
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`Unfortunately, Rise Brewing’s hard-earned success is now being threatened by
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 2 of 37
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`PepsiCo, a marketplace giant with a well-documented history of misappropriating the rights of
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`smaller, innovative brands.
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`4.
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`In this instance, three months ago PepsiCo launched its own RISE-branded caffeine
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`drink to specifically target the morning coffee drinker, and positioned it to be sold alongside – and
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`compete directly with – Rise Brewing’s RISE-branded caffeine drinks.
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`5.
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`Rise Brewing contacted PepsiCo in an effort to resolve this dispute outside of the
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`courts. PepsiCo was dismissive of Rise Brewing’s concerns, and refused to abandon any of its
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`plans with respect to its infringing mark.
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`6.
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`Rise Brewing is an American success story, a business built on hard work,
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`innovation, and a great tasting product that consumers have grown to love. While Rise Brewing
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`does not welcome this dispute, it cannot allow PepsiCo to destroy Rise Brewing’s brand and the
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`associated consumer goodwill through willful and reckless infringement of Rise Brewing’s RISE
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`marks. Therefore, through this lawsuit, Rise Brewing chooses to rise and take a stand against
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`PepsiCo’s unlawful actions.
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`A.
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`Plaintiff Rise Brewing and Its Success
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`7.
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`Rise Brewing was founded in an East Village, New York apartment in 2014 by three
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`childhood friends, Jarett McGovern, Grant Gyesky, and Justin Weinstein, along with their co-
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`founder Hudson Gaines-Ross. Having had enough of the chemical-laden, sugary, ready-to-drink
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`coffee products on the store shelves, they sought to create something better, a new product that was
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`responsibly sourced, environmentally friendly, and made from all organic ingredients.
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`8.
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`Rise Brewing’s founders began experimenting with different beans and roasts.
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`Rather than using traditional brewing techniques, they adopted a “nitro cold brew” process, which
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`infuses nitrogen into the brewing process to give coffee a foamy, creamy texture, without the
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`bitterness of typical drip coffees. Rise Brewing’s first commercial product, available in large format
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 3 of 37
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`kegs similar to those used for beer, was sold at a popular Brooklyn restaurant. Patrons of that
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`restaurant enjoyed the product immensely, and contacted Rise Brewing to ask it to make its product
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`available at office buildings in New York.
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`9.
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`Almost immediately, Rise Brewing’s founders saw the potential for a canned nitro
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`cold brewed product. Given that the available canned energy products were limited to either
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`traditional energy drinks such as Monster Energy® and Red Bull®, or highly-sweetened ready-to-
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`drink coffee drinks such as Starbucks Frappuccino®, Rise Brewing saw the need for a canned
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`caffeine drink that did not have the chemicals, dairy, fat, and sugar associated with these available
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`products.
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`10.
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`Rise Brewing began experimenting with nitrogen widgets, which are small plastic
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`devices inside a can that store nitrogen. As soon as you open the can, the widget releases bubbles,
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`which rise to the top of the can or glass. The widget creates the same cascade and smooth, creamy
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`head that consumers enjoy from nitro cold brew coffee served on tap from a keg.
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`11.
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`Rise Brewing became the first brand in the United States to have a shelf-stable
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`canned coffee product with a nitrogen widget that would require no refrigeration and thus enable
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`easier transportation and storage of the product.
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`12.
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`Rise Brewing’s founders did indeed fill a marketplace void, and its canned caffeine
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`drinks were an instant success. Today, Rise Brewing sells tens of millions of dollars of its products,
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`which can be found in grocery stores, convenience stores, and other big box and online retailers
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`across the country.
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`13.
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`Because Rise Brewing’s RISE canned caffeine drinks are shelf-stable, they are sold
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`on shelves alongside other shelf-stable canned energy drinks.
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`14.
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`Rise Brewing’s products have expanded from the original nitro cold brew, and today
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 4 of 37
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`include several other canned caffeinated drinks, including an Earl Grey tea latte. Rise Brewing’s
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`products have also included citrus coffee products, i.e., a blood orange coffee and a lemonade
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`coffee. A sampling of Rise Brewing’s product offerings sold under its RISE family of Marks
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`(discussed below) are depicted in the image below.
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`15.
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`Rise Brewing’s marketing targets all consumers, but the company runs specific
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`marketing campaigns focusing on the athletic and wellness community, advertising its drinks as a
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`source of energy to drive athletic performance. Given its specific focus on the athletic community,
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`Rise Brewing has partnerships to promote its RISE-branded drinks with multiple Olympic sports
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`teams, such as the USA Surf Team, USA Climb Team, and the US Ski & Snowboard Team. RISE-
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`branded drinks are also stocked in the locker rooms of several major New York-area professional
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`sports teams, including the New York Yankees, the New York Mets, and the New York Giants, as
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`well as in MMA (mixed martial arts) facilities. Additionally, Rise Brewing was a sponsor of FOX
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`Sports’ 2020 college football season.
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`16.
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`In the years since its founding, Rise Brewing has been recognized with multiple
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 5 of 37
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`awards for its drinks. Rise Brewing’s nitro cold brew received the 2017 Best New Product award
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`from BevNET and a 2018 Beverage Innovation of the Year award from Beverage Industry, two
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`leading trade magazines. Rise Brewing also won a 2018 NEXTY Best New Organic Beverage
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`award, administered by New Hope Network, a natural foods association. And in 2019, Rise Brewing
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`was awarded People Magazine’s Best Canned Coffee award for its canned nitro cold brew.
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`17.
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`As demonstrated in part by these awards, Rise Brewing has invested considerable
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`time and expense in marketing and ensuring that its branding is recognizable to consumers. It set
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`out and achieved its mission to create a delicious, healthy caffeine drink, using all organic
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`ingredients, and its brand has risen in popularity and renown since its humble beginnings.
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`18.
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`Rise Brewing’s brand and hard-earned success is under an imminent threat by
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`PepsiCo which, shortly before this complaint was filed, released its own RISE-branded caffeine
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`drink that was designed to specifically target the morning coffee drinker, and is marketed as a
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`morning caffeinated drink to replace ready-to-drink coffee drinks such as RISE.
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`B.
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`PepsiCo’s Long History of Being a Repeat Trademark Offender
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`19.
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`On information and belief, PepsiCo was formed in 1965 with the merger of Pepsi-
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`Cola Company and Frito-Lay, Inc. PepsiCo has since acquired numerous other companies,
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`including Quaker Oats and Tropicana, and is now one of the largest food and beverage producers
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`in the world. Upon information and belief, as of 2021, PepsiCo owns hundreds of brands, 23 of
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`which are “billion dollar” brands, i.e., brands with over a billion dollars of annual sales.
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`20. When PepsiCo purchased the Gatorade line of products in the 2000s for billions of
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`dollars, even then federal regulators recognized the monopoly that PepsiCo was solidifying in the
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`beverage industry and the harm that could result. After squeaking by on a 2-2 vote after the Federal
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`Trade Commission’s antitrust investigation of PepsiCo’s purchase of Gatorade’s previous owner,
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`Quaker Oats, commissioners Sheila F. Anthony and Mozelle W. Thompson warned that “PepsiCo’s
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 6 of 37
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`acquisition of Quaker Oats is unlawful and contrary to the public interest. … As a result of the
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`Commission’s failure to act today, we believe that consumers of sports drinks and, indeed, all soft
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`drinks will suffer the consequences.”
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`21.
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`Those fears have come to pass in the ensuing decades, now most recently in
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`PepsiCo’s unlawful attempt to squeeze senior user Rise Brewing out of the market by launching its
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`own infringing RISE-branded canned caffeine drink. Indeed, by adopting Rise Brewing’s RISE
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`Mark on its own canned caffeine drinks, PepsiCo’s plan follows a well-established pattern—
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`flooding the market with products bearing confusingly similar marks in order to cause consumers
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`to confuse and improperly associate RISE with PepsiCo rather than Rise Brewing.
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`22.
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`PepsiCo’s tactics, while unethical and unlawful, are not unfamiliar. Rather than
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`fairly compete with brands it develops itself, PepsiCo has repeatedly demonstrated that it resorts to
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`copying the ideas of its competitors and then uses its immense marketplace weight and nationwide
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`distribution network to flood the market with its infringing products.
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`23.
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`For example, in 2006, PepsiCo was sued for copying the trade dress and product
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`formulation of Glacéau’s VitaminWater. In that case, PepsiCo was accused of instigating deceptive
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`and harmful marketing and sales practices in connection with the launch of its copycat product. In
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`response to these allegations, PepsiCo changed its packaging before the Court ruled on Glacéau’s
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`claims.
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`24.
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`In April of 2011, Polar Corp. obtained a preliminary injunction blocking PepsiCo
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`from selling PepsiCo’s frozen slush drink POLAR SHOCK as the product name was confusingly
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`similar to that of Polar Corp.’s POLAR trademark. Less than two months after that decision,
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`PepsiCo settled the case.
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`25.
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`PepsiCo does not reserve its tactics for small competitors. In 2011, PepsiCo faced
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 7 of 37
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`claims of trade dress misappropriation brought by Coca-Cola for the sale of PepsiCo’s copycat
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`Trop50 juice bottle design. PepsiCo used a bottle that was alleged to be “virtually
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`indistinguishable” from Coca-Cola’s successful and well-known Simply Orange® orange juice
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`trade dress. PepsiCo settled the case less than six months after the complaint was filed.
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`26. Most recently, approximately three months ago the United States District Court for
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`the Southern District of Texas issued two nationwide temporary restraining orders to halt PepsiCo’s
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`rollout of its new Gatorade product that infringed a competitor’s trade dress. The allegations
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`included “a deliberate attempt by PepsiCo and its agents to use deceptive tactics in the marketplace,
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`and PepsiCo’s outsized influence, to capitalize on the confusing similarity between [PepsiCo’s
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`product] and the [trademark owner’s] ELECTROLIT branded beverages.” Laboratorios Pisa S.A.
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`de C.V. v. PepsiCo, Inc., No. 7:21-cv-00062, D.I. 2-1, p. 28 (S.D. Tex. Feb. 18, 2021).
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`C.
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`PepsiCo’s Actions Are Causing “Reverse Confusion” in Violation of the Lanham Act
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`27.
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`Trademark infringement is the unauthorized use of a trademark on or in connection
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`with the sale of goods and/or services in a manner that is likely to cause confusion, deception, or
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`mistake about the source of the goods and/or services, or as to an affiliation, connection, or
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`association between the companies involved.
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`28.
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`In the traditional type of trademark infringement case, one sees a defendant, the
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`“junior user” of the mark, enter the market with a trademark similar to the plaintiff’s, the “senior
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`user,” causing consumers to believe the defendant or its products are associated with the plaintiff
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`or its products. This is called “forward confusion.”
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`29.
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`In a reverse confusion case, the consumer confusion goes the other way. Because
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`of PepsiCo’s incredible market power and size, consumers are confused into believing that the Rise
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`Brewing RISE drinks are associated or affiliated with, sponsored or endorsed by, or otherwise
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`connected with PepsiCo and its “Mtn Dew RISE” product. This so called “reverse confusion”
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 8 of 37
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`constitutes trademark infringement and unfair competition and is a violation of the Lanham Act.
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`30.
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`Over forty years ago, the concept of “reverse confusion” was first pronounced in the
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`Tenth Circuit’s ruling in Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365
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`(10th Cir. 1977). Instead of the traditional concept of forward confusion, in which consumers would
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`be likely to be confused as to whether a junior user’s goods are associated with that of a senior user,
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`reverse confusion was designed to address the high burden on a small, less powerful senior user
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`trying to prove that a larger, infringing junior user was trading on their trademark’s goodwill,
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`especially where the senior user’s own customers were confused. The Big O court recognized that
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`something other than the traditional forward confusion theory of trademark infringement was
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`necessary to prevent “anyone with adequate size and resources [from] adopt[ing] any trademark
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`and develop[ing] a new meaning for that trademark as identification of the second user’s products.”
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`Id. at 1372.
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`31.
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`This action presents a classic case of reverse confusion. A larger, more powerful
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`junior user (PepsiCo) adopted the trademark (RISE) of a smaller senior user (Rise Brewing) and
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`uses its commercial dominance and superior resources to saturate the market with that mark. The
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`market flooding by the larger junior user (PepsiCo) overwhelms that of the senior user (Rise
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`Brewing) and creates a likelihood of confusion as consumers come to assume that the senior user’s
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`products (Rise Brewing’s RISE-branded products) are really those of the junior user (PepsiCo), or
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`that the former has become somehow affiliated with or sponsored by the latter. Some consumers
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`even come to believe that the senior user (Rise Brewing) is an infringer of the junior user (PepsiCo),
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`tarnishing the senior user’s reputation.
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`32.
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`PepsiCo is no stranger to the reverse confusion doctrine. In fact, the law of reverse
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`confusion was cemented in the Seventh Circuit involving the GATORADE sports drink, now one
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`of PepsiCo’s billion-dollar brands. In the seminal case on reverse confusion in this circuit, Sands
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`Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947 (7th Cir. 1992), the Seventh Circuit held that
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`Quaker Oats’ (then owner of the GATORADE brand) use of the THIRST AID slogan infringed the
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`THIRST-AID trademark owned by the smaller senior user plaintiff, Sands, by causing reverse
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`confusion.
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`33.
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`In Sands, the Seventh Circuit recognized the importance of protecting smaller
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`brands from being overtaken by larger competitors, holding that “‘the objectives of the Lanham
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`Act—to protect an owner’s interest in its trademark by keeping the public free from confusion as
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`to the source of goods and ensuring fair competition—are as important in a case of reverse
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`confusion as in typical [forward] trademark infringement.’” Id. at 958 (quoting Banff, LTd. v.
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`Federated Dep’t Stores, Inc., 841 F.2d 486, 490 (2d Cir. 1988)).
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`D.
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`PepsiCo Seeks to Capitalize on Rise Brewing’s Success and Refuses to Change Its
`Product Name
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`34.
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`Consistent with its prior practice, PepsiCo capitalized on Rise Brewing’s success to
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`increase its market share amongst morning caffeine drinkers. According to public media reports,
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`PepsiCo’s consumer insights division developed a “Framework of Energy Management” that
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`identified six occasions in which consumers use PepsiCo products, noting that the “biggest
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`untapped moment for energy drinks is the ‘get started’ coffee hour, during which time PepsiCo
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`claims millennials and Gen Zers have increasingly been reaching for a sweet energy drink instead
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`of a bitter cup of coffee.” PepsiCo accordingly launched its own RISE drink to fill that gap.
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`35.
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`PepsiCo also likely knew that the launch of its PepsiCo RISE drink would also
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`destroy a leading competitor to Starbucks’ Ready-To-Drink (RTD) coffee drinks, which are
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`distributed by PepsiCo through the North American Coffee Partnership. Through this partnership
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`with Starbucks, PepsiCo has been profiting off of the distribution of Starbucks RTD coffee for more
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`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 10 of 37
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`than 20 years.
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`36.
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`Additionally, Rise Brewing had a number of conversations over the years with both
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`PepsiCo and Starbucks at beverage industry tradeshows. Based on the foregoing, PepsiCo was
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`aware of Rise Brewing, Rise Brewing’s RISE Marks, and the company’s remarkable success in the
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`RTD category.
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`37.
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`Once Rise Brewing learned of PepsiCo’s plan to launch an infringing drink, Rise
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`Brewing immediately reached out to PepsiCo to notify it of the consumer confusion that PepsiCo’s
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`RISE product launch would certainly cause, given the similarity of the competing drinks’ names,
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`target markets, and Rise Brewing’s pre-existing rights in its RISE family of Marks (listed below).
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`38.
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`PepsiCo was dismissive of Rise Brewing’s concerns, despite knowing that the
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`infringing drink they were about to launch would cause lasting and irreparable injury to Rise
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`Brewing’s brand.
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`39.
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`Following the launch of PepsiCo’s drink, Rise Brewing once again contacted
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`PepsiCo, noting that actual consumer confusion was occurring, and requesting that it change the
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`name of the drink. PepsiCo again refused, claiming that no confusion was likely as its drink is a
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`morning caffeine drink and not a coffee drink. PepsiCo also maintained that its use of its house
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`mark “Mtn Dew” in connection with RISE should absolve them of any wrongdoing in using an
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`identical RISE mark as Rise Brewing. But as PepsiCo knows well the use of a house mark is an
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`aggravating factor in reverse confusion cases. Indeed, in in the seminal Sands (Gatorade) case,
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`Gatorade trotted out this same argument regarding a house mark and the Court stated that that fact
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`would tend to exacerbate the reverse confusion, not alleviate it, as it invites consumers to draw the
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`erroneous conclusion that RISE products emanate from PepsiCo, the owner of the Mtn Dew brand,
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`rather than from the senior user Rise Brewing.
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`40.
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`PepsiCo has willfully and deliberately marketed its infringing drink as a substitute
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`for coffee, using the tagline “CONQUER THE MORNING,” and it has been sold on the same
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`shelves as Rise Brewing’s RISE drinks. PepsiCo’s actions have demonstrated not just a blatant
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`disregard for Rise Brewing, or even a good-faith effort to compete on a level playing field, but a
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`desire to copy and replace Rise Brewing’s RISE drinks with PepsiCo’s Mtn Dew RISE drinks,
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`simply because it enjoys extreme market power due to its sheer size and immense resources.
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`41. Mtn Dew RISE is not intended to be a small PepsiCo product offering. Indeed, so
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`important is the Mtn Dew RISE brand to PepsiCo, it hired LeBron James away from competitor
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`The Coca-Cola Company to be the face of the new Mtn Dew RISE campaign.
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`42.
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`PepsiCo has also partnered with professional surfers Sage Erickson and Jack
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`Robinson, and fitness and wellness model Julie “Jaws” Nelson. Promotional photos featuring the
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`three all replicate the same extreme, solo sporting activities and environments Rise Brewing focuses
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`on in its promotional campaigns with various surfers and skiers.
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`43.
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`PepsiCo’s actions in unlawfully adopting Rise Brewing’s mark are the latest chapter
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`of its storied history of taking instead of innovating, a story that is well documented in prior
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`litigations where PepsiCo has repeatedly been accused of and found liable for infringing on other’s
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`trademark rights.
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`44.
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`Rise Brewing did not want to file this lawsuit, but was left with no choice but to
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`stand up for itself and the brand it has worked so hard to build. To stop this unlawful conduct, and
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`to recover the damages caused by it, Rise Brewing brings this action for trademark infringement in
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`violation of 15 U.S.C. § 1114; false designation of origin and unfair competition in violation of 15
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`U.S.C. § 1125(a); unfair competition and trademark infringement under Illinois common law; and
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`unfair trade practices under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et
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`seq.
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`THE PARTIES
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`45.
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`Plaintiff Rise Brewing is a Delaware corporation with its principal place of business
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`at 425 Fairfield Ave., Stamford, Connecticut, 06902. RISE is the owner of the RISE family of
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`Marks (listed below) which are used to sell and promote its RISE canned coffee products.
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`46.
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`Defendant PepsiCo is a North Carolina corporation with offices at 700 Anderson
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`Hill Road, Purchase, New York, 10577. PepsiCo has significant operations in Illinois and in this
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`judicial district, where it employees over 1,300 corporate employees in its Chicago offices.
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`JURISDICTION AND VENUE
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`47.
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`This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C. §
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`1121, and 28 U.S.C. §§ 1331 and 1338 with respect to the claims arising under federal law and
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`supplemental jurisdiction pursuant to 28 U.S.C. § 1367 and 28 U.S.C. § 1338(b) with respect to the
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`claims arising under the laws of the state of Illinois. This Court further has jurisdiction under 28
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`U.S.C. § 1332 as the parties are citizens of different states and the amount in controversy is more
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`than $75,000.
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`48.
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`This Court has personal jurisdiction over PepsiCo because PepsiCo has substantial
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`contacts in the Northern District of Illinois and regularly conducts business in this District. Upon
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`information and belief, PepsiCo has a large office in this District at 433 W Van Buren St, Chicago,
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`IL 60607. Upon information and belief, this office has 1,300 employees. Upon information and
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`belief, PepsiCo’s Chicago-based employees include individuals responsible for the marketing of its
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`Mountain Dew Brand. PepsiCo has an additional office in this District at 617 West Main Street,
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`Barrington, Illinois 60010.
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`49.
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`PepsiCo has continuous and systematic contacts with the State of Illinois such that
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`they could reasonably foresee being brought into court in Illinois.
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`50.
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`This Court also has personal jurisdiction over PepsiCo because PepsiCo has
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`committed tortious acts and sold infringing products in this State and District that are the subjects
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`of the claims set forth herein. PepsiCo has purposefully availed itself of the privilege of conducting
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`business with residents of this District and has established sufficient minimum contacts with the
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`State of Illinois such that it should reasonably and fairly anticipate being brought into court in
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`Illinois. Accordingly, the exercise of jurisdiction over PepsiCo comports with the traditional notions
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`of fair play and substantial justice.
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`51.
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`Further, PepsiCo has recently litigated a trademark case in this District and did not
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`contest jurisdiction in that case, indicating that it consents to jurisdiction in this district. See
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`SportFuel, Inc. v. PepsiCo, Inc., 1-16-cv-07868, D.I. 15, pg. 6 (N.D. Ill. Sept. 30, 2016).
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`52.
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`Venue in this District is proper under 28 U.S.C. § 1391 because PepsiCo conducts
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`or has conducted business in this judicial District and because this Court has personal jurisdiction
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`over PepsiCo in this District. Further, PepsiCo did not contest venue in this District in the recent
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`SportFuel case, indicating that it consents to venue in this District.
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`FACTUAL BACKGROUND
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`A.
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`The RISE Marks.
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`53.
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`Rise Brewing owns multiple valid registered trademarks, which are registered with
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`the United States Patent and Trademark Office (“USPTO”), as shown in the chart below (together
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`with RISE’s common law rights in these and other RISE-formative marks, these registered marks
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`are referred to collectively herein as the “RISE Marks”). Copies of the registrations and status
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`pages from the USPTO are attached as Exhibit A.
`
`Mark
`RISE BREWING CO.
`(“BREWING CO.”
`disclaimed)
`
`Registration No. &
`Registration Date
`5,168,377
`March 21, 2017
`
`Goods and Services
`Class 30: Coffee; coffee; coffee and
`coffee substitutes; coffee and artificial
`coffee; coffee and tea; coffee based
`
`13
`
`

`

`
`
`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 14 of 37
`
`Goods and Services
`beverages; coffee beverages with milk;
`coffee-based beverage containing milk;
`coffee-based beverages; coffee-based
`iced beverages; beverages made of
`coffee; beverages with a coffee base;
`green coffee; iced coffee; prepared
`coffee and coffee-based beverages;
`unroasted coffee.
`Class 30: Coffee; Coffee; Coffee and
`coffee substitutes; Coffee and artificial
`coffee; Coffee and tea; Coffee based
`beverages; Coffee beans; Coffee
`beverages with milk; Coffee capsules
`containing coffee for brewing; Coffee
`essences; Coffee extracts; Coffee pods;
`Coffee-based beverage containing
`milk; Coffee-based beverages; Coffee-
`based iced beverages; Beverages made
`of coffee; Beverages with a coffee
`base; Green coffee; Iced coffee;
`Prepared coffee and coffee-based
`beverages; Unroasted coffee.
`
`Class 31: Unprocessed coffee
`
`Class 43: Coffee bars; Coffee shops
`Class 30: Coffee; Coffee and coffee
`substitutes; Coffee based beverages;
`Coffee beans; Coffee extracts; Coffee
`pods; Coffee, tea, cocoa and artificial
`coffee; Caffeine-free coffee; Green
`coffee; Iced coffee
`
`Mark
`
`
`Registration No. &
`Registration Date
`
`
`RISE BREWING CO.
`(“BREWING CO.”
`disclaimed)
`
`
`
`RISE NITRO
`BREWING CO.
`(“NITRO BREWING
`CO.” disclaimed)
`
`
`5,333,635
`November 14, 2017
`
`6,140,084
`September 1, 2020
`
`14
`
`

`

`
`
`
`
`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 15 of 37
`
`Mark
`RISE NITRO
`(“NITRO” disclaimed)
`
`Registration No. &
`Registration Date
`5,188,284
`April 18, 2017
`
`RISE & GRIND
`
`RISE MAKES YOU
`SHINE
`
`4,396,118
`September 3, 2013
`6,007,308
`March 10, 2020
`
`RISE-N-SHINE
`BLEND
`(“BLEND” disclaimed)
`
`3,253,782
`June 19, 2007
`
`Goods and Services
`Class 30: Coffee; Coffee; Coffee and
`coffee substitutes; Coffee and artificial
`coffee; Coffee and tea; Coffee based
`beverages; Coffee beverages with milk;
`Coffee-based beverages; Coffee-based
`iced beverages; Beverages made of
`coffee; Beverages with a coffee base;
`Iced coffee; Prepared coffee and
`coffee-based beverages
`Class 43: Cafe services; Coffee shops
`
`Class 30: Coffee and coffee substitutes;
`Tea; Coffee based beverages
`
`Class 35: Retail store services featuring
`Coffee and coffee substitutes; coffee-
`based beverages; tea.; On-line retail
`store services featuring Coffee and
`coffee substitutes; coffee-based
`beverages; tea
`Class 30: Coffee
`
`54.
`
`55.
`
`Rise Brewing’s registrations are valid, subsisting, and in full force and effect.
`
`Since long before PepsiCo launched its infringing Mtn Dew RISE drinks, Rise
`
`Brewing has prominently used and promoted its RISE Marks through extensive advertising,
`
`marketing, and sale of goods bearing the marks. As a result of this adoption, continuous use, and
`
`heavy promotion of the RISE Marks, the RISE Marks have become invaluable assets of Rise
`
`Brewing, serving as a symbol of the quality goods provided by Rise Brewing.
`
`56.
`
`Rise Brewing also owns common law rights in a number of RISE-formative marks,
`
`including RISE COFFEE CO., RISE NITRO BREWING CO., HOW I RISE, ON THE RISE, RISE
`
`BREWING, and a stylized RISE NITRO BREWING CO. design, as depicted on cans of Rise
`
`Brewing’s canned caffeine drinks, below. Rise Brewing has used each of these RISE-formative
`
`15
`
`

`

`
`
`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 16 of 37
`
`marks in connection with its canned caffeine drinks.
`
`57.
`
`
`As noted in the chart above, the wording “BREWING CO.” and “NITRO” has been
`
`disclaimed in RISE’s federal registrations, indicating that RISE is the prominent, distinctive portion
`
`of the registered RISE Marks. RISE is similarly the formative portion of the common law RISE-
`
`formative marks RISE COFFEE CO., RISE NITRO BREWING CO., and the stylized RISE NITRO
`
`BREWING CO. design.
`
`B.
`
`PepsiCo and Its Unlawful Conduct.
`
`58.
`
`One of the beverage brands sold by PepsiCo is Mountain Dew, a citrus-flavored
`
`caffeinated soft drink. Upon information and belief, Mountain Dew is among the top five best-
`
`selling soft drinks in the United States.
`
`59.
`
`Upon information and belief, in an attempt to break into the market of morning
`
`caffeinated beverages using the strong consumer recognition of its Mountain Dew brand, in January
`
`2021, PepsiCo announced plans to launch a drink named “Mtn Dew Rise Energy,” but referred to
`
`as simply “Mtn Dew RISE” or “RISE.” As an energy drink catering to the morning caffeinated
`
`beverage consumers, Mtn Dew RISE was intended to be sold alongside other energy drinks and
`
`canned coffee drinks, including RISE caffeine drinks, instead of being sold alongside other sodas.
`
`60.
`
`Upon information and belief, in an effort to saturate the market with its Mtn Dew
`
`16
`
`

`

`
`
`Case 1:21-cv-06324-LGS Document 1 Filed 06/15/21 Page 17 of 37
`
`RISE drinks as quickly as possible, PepsiCo hired international superstar LeBron James to be the
`
`spokesperson for this new product. PepsiCo also launched a website for its new drink, available at
`
`www.mountaindewrise.com. Similarly, PepsiCo’s Instagram handle for its Mtn Dew RISE drink is
`
`@mountaindewrise.
`
`61. When Rise Brewing wrote to PepsiCo to explain the extent of confusion that would
`
`result from PepsiCo’s launch of its infringing Mtn Dew RISE drink in light of Rise Brewing’s own
`
`RISE Marks, PepsiCo dismissed Rise Brewing’s claims as “grossly overreaching.” Even though it
`
`acknowledged Mtn Dew RISE was being marketed to morning caffeinated beverage drinkers,
`
`PepsiCo, while conceding that it “markets products in virtually every segment of the beverage
`
`industry,” told Rise Brewing that the distinction between energy drinks and canned coffee drinks
`
`was understood by “apparently [] everyone except” for Rise Brewing, and summarily dismissed
`
`Rise Brewing’s concerns.
`
`62.
`
`Plowing forward, Mtn Dew RISE was launched in March of 2021, through a high-
`
`visibility marketing campaign featuring LeBron James and the tag lines “CHOOSE TO RISE” and
`
`“CONQUER THE MORNING.”
`
`C.
`
`PepsiCo’s Infringement of the RISE Marks Is Likely to Cause Forward and Reverse
`Confusion
`
`63.
`
`Upon information and belief, and consistent with PepsiCo’s past practices,
`
`PepsiCo’s unauthorized use of its confusingly similar Mtn Dew RISE mark is an attempt to trade
`
`on the goodwill of Rise Brewing’s RISE Marks, and to dominate the market by using its superior
`
`resources to cause consumers to associate RISE with Mountain Dew and PepsiCo rather than with
`
`Rise Brewing.
`
`64.
`
`PepsiCo’s stylized Mtn Dew RISE mark, displayed on the packaging for its
`
`competing drink, is similar to the RISE Marks in sight, sound, connotation, and commercial
`
`17
`
`

`

`
`
`Case 1:21-cv-06324-L