Case 21-2786, Document 25, 11/08/2021, 3207650, Page1 of 77
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`APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
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`rev. 12/19 AK
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`Save As
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`21-2786
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`RiseandShine Corp. d/b/a Rise Brewing v. PepsiCo, Inc.
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`Save As
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`Clear Form
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`21-2786
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`RiseandShine Corp. d/b/a Rise Brewing v. PepsiCo, Inc.
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`Save As
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`Clear Form
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`21-2786
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`RiseandShine Corp. d/b/a Rise Brewing v. PepsiCo, Inc.
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`RiseandShine Corporation d/b/a Rise Brewing
`
`Alston & Bird LLP
`
`N/A
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`N/A
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`N/A
`
`N/A
`
`/s/ Kirk T. Bradley
`
`11/08/2021
`
`Kirk T. Bradley
`
`4
`
`Alston & Bird LLP, 101 South Tryon Street, Ste. 4000, Charlotte, NC 28280-4000
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`704-444-1000
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`704-444-1111
`
`kirk.bradley@alston.com
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page2 of 77
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`No. 21-2786
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`RISEANDSHINE CORP. D/B/A/ RISE BREWING,
`Plaintiff-Appellee,
`
`v.
`
`PEPSICO, INC.,
`
`Defendant-Appellant.
`
`On Appeal from the United States District Court
`for the Southern District of New York
`No. 1:21-cv-06324-LGS
`Honorable Lorna G. Schofield
`
`PLAINTIFF-APPELLEE’S OPPOSITION TO DEFENDANT-
`APPELLANT’S EMERGENCY MOTION FOR STAY OF
`PRELIMINARY INJUNCTION PENDING APPEAL
`
`Holly Hawkins Saporito
`Jason D. Rosenberg
`ALSTON & BIRD LLP
`1201 W. Peachtree St.
`Atlanta, GA 3039
`Tel. (404) 881-7000
`Fax. (404) 881-7777
`
`Kirk Bradley
`Paul Tanck
`Neal McLaughlin
`ALSTON & BIRD LLP
`90 Park Avenue
`New York, NY 10016
`Tel. (212) 210-9400
`Fax. (212) 9444
`
`Attorneys for Plaintiff-Appellee
`RiseandShine Corp. d/b/a Rise
`Brewing.
`
`

`

`Case 21-2786, Document 25, 11/08/2021, 3207650, Page3 of 77
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`INTRODUCTION
`
`The very first paragraph of PepsiCo, Inc.’s (“PepsiCo”) Emergency Motion
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`for Stay (“Motion”) introduces two theories, neither of which is supported by the
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`record. The first theory is that Rise Brewing Company “relied solely on anecdotal
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`evidence of confusion.” The second theory is that the district court thus issued a
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`preliminary injunction order “all because the marks at issue … share the commonly
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`used word ‘Rise.’” Rise’s evidence indeed included extensive testimony of actual
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`confusion, but the evidence did not stop there. And the district court did not take the
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`cavalier approach that PepsiCo now insinuates. Each aspect of the district court’s
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`analysis and ruling was thorough, thoughtful, and well reasoned, from the summary
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`of the pertinent law, to the descriptions of the evidence adduced on paper and during
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`two separate hearings (including live testimony from nine witnesses), to the ultimate
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`findings of fact and determination that a preliminary injunction is warranted.
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`The second paragraph of PepsiCo’s Motion fares no better. There, PepsiCo
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`seeks to convert the district court’s extensive factual findings into “legal error.”
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`There is none. PepsiCo states that the district court committed “fundamental legal
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`error” by “treating the word ‘Rise’ as the product names,” “ignoring the[] overall
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`distinct marks,” and on “that ground” entering a preliminary injunction. Mot. at 1.
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`That is not what the district court did, nor was it “that ground” that warranted a
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`preliminary injunction. Instead, it was the totality of the evidence upon consideration
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`1
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page4 of 77
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`of all of the Polaroid factors.
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`PepsiCo repeats the mantra in the body of its Motion, contending that the court
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`“committed multiple legal errors” by “focus[ing] on the single word ‘RISE.’” Mot.
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`at 14. But that is not what the district court did. Not at all. The court correctly
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`evaluated “‘how [the marks] are presented in the marketplace.’” Appendix14
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`(quoting Sports Auth., Inc. v. Prime Hosp. Corp., 89 F.3d 955, 962 (2d Cir. 1996)).
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`As part of that analysis, the court depicted a side-by-side comparison of the parties’
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`confusingly similar products:
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`Appendix2. The court also noted that the mark at issue “consists of more than the
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`word ‘RISE’ taken alone and out of context, but includes ‘the stylized logo of that
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`name including the unusual form and shape of the letters comprising the word.’”
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`Appendix14 (quoting Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072,
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`1077–78 (2d Cir. 1993)). In that regard, the court found—correctly—that the word
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`“RISE” is prominent in large capital letters against a light background on the top
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`third of the can, with the other words in the mark being in much smaller font.
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`Appendix1–2.
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`2
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page5 of 77
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`Based on the substantial evidence presented, the district court found that Rise
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`Brewing had shown “not only a likelihood of success on the merits,” but “a clear or
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`substantial likelihood of success on the merits.” Appendix8 n.3 (emphasis added).1
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`This was not a close case. Rise Brewing readily demonstrated a likelihood of success
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`on the merits—“clear or substantial” according to the district court upon first-hand,
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`thorough consideration of the evidence. First, PepsiCo did not even challenge the
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`validity of Rise Brewing’s marks. Appendix9. Second, Rise Brewing demonstrated
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`a likelihood of confusing, by providing (among other evidence) “credible testimony
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`at the October 8, 2021, hearing from Mr. Gyesky, Ms. Ratliff and Ms. Schmidt on
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`instances of actual confusion.” Appendix11.2 For example, as the district court
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`1 PepsiCo’s Motion continues to pursue a failed argument that Rise Brewing had
`“admitted” that the RISE mark is weak. Mot. at 1. The Trademark Office rejected
`that argument, finding no such weakness of the RISE mark. Moreover, “prosecution
`history estoppel,” a tenant of patent law, does not apply in trademark cases. See, e.g.,
`Polo Fashions, Inc. v. Extra Special Prods., Inc., 451 F. Supp. 555, 561 (S.D.N.Y.
`1978) (holding that trademark owners are not bound by statements made to the
`USPTO in ex parte trademark prosecutions); PenGems, LLC v. Morgan, 2018 U.S.
`Dist. LEXIS 131204, at *6–*7 (W.D. Tex. Aug. 3, 2018) (“[C]ourts have repeatedly
`refused to apply the doctrine of prosecution history estoppel to trademarks . . . .”);
`Metal Jeans, Inc. v. Affliction Holdings, LLC, 2015 U.S. Dist. LEXIS 80710 (C.D.
`Cal. June 19, 2015); ICON Health & Fitness, Inc. v. Breg, Inc., 2020 TTAB LEXIS
`453, at *4 n.2 (T.T.A.B. Sept. 18, 2020) (“[a] plaintiff is not bound by a position
`taken during prosecution of the party’s application”). The district court correctly
`rejected this argument in its order. Appendix13–14.
`2 PepsiCo’s Motion asserts that “PepsiCo is unaware of any instance of actual
`consumer confusion.” Mot. at 6. The district court found otherwise, specifically
`crediting Rise Brewing’s extensive evidence of actual confusion. Appendix6, 11, 18.
`PepsiCo also posits that Rise Brewing’s evidence is insufficient in the face of survey
`evidence. Mot. at 2, 11. PepsiCo’s survey evidence was harshly criticized by Rise
`
`3
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page6 of 77
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`summarized, “Ms. Schmidt described confusion in stores and at product tastings as
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`the ‘norm . . . not the exception at this point’ and that she is regularly asked if
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`Plaintiff’s product is the new coffee version of Mountain Dew.” Appendix6; see
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`Appendix150–151 (84:21 – 85:3); Appendix157 (91:3–5). This is evidence not only
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`of actual confusion, but specifically actual reverse confusion.3
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`Third, as to irreparable harm, the district court first noted the presumption of
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`irreparable harm that the law affords to Rise Brewing. Appendix20. The court
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`correctly found that PepsiCo failed to rebut that presumption. Id. PepsiCo’s primary
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`argument was that Rise Brewing had “delayed” in bringing its motion for a
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`preliminary injunction. But PepsiCo stops short of explaining the history—and there
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`is indeed a long history between Rise Brewing and PepsiCo on this very subject.
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`As the district court found, Rise Brewing’s CEO first met with PepsiCo in
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`2017 “to discuss a potential partnership opportunity,” with additional meetings in
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`Brewing’s expert, and the survey does not undermine the evidence of actual
`confusion in the marketplace. The law supports that approach, relied on by the
`district court. See Sports Auth., 89 F.3d at 964 (“a trier of fact may still conclude
`that actual confusion exists in the absence of such evidence, so long as there is other
`evidence of actual confusion”).
`3 PepsiCo contends that the district court “committed legal error by ignoring what
`qualifies as relevant evidence of ‘actual confusion’ under governing trademark law.”
`Mot. at 9. And then PepsiCo labels Rise Brewing’s witness testimony as “vague
`testimony about confusion generally.” Not true. As demonstrated by the quoted
`testimony from Ms. Schmidt (relied on by the district court), the evidence of actual
`confusion was specific (not “vague”) and demonstrated actual reverse confusion (not
`“confusion generally”).
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`4
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page7 of 77
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`2018 and 2019. Appendix2. Then, in January 2021, Rise Brewing learned of
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`PepsiCo’s plan to offer its competing “caffeinated canned beverage under the mark
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`MTN DEW RISE ENERGY.” Id. The parties then remained in near-constant
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`communication, with at least ten substantive emails and letters as well as multiple
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`telephone calls, including five separate demands that PepsiCo change its plans and
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`use a non-infringing mark. After PepsiCo both rejected the suggested partnership and
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`refused to use a different product name, Rise Brewing filed suit mere weeks after the
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`last communication, and then quickly sought a preliminary injunction.4 There was no
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`delay. See Appendix20–21 (finding no delay, citing Goat Fashion Ltd. v. 1661, Inc.,
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`No. 19 Civ. 11045, 2020 WL 5758917, at *6 (S.D.N.Y. Sept. 28, 2020) (four-month
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`delay did not rebut presumption of irreparable harm given settlement discussions);
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`Marks Org., Inc. v. Joles, 784 F. Supp. 2d 322, 333-34 (S.D.N.Y. 2011) (sixteen-
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`month delay did not vitiate finding of irreparable harm where parties had settlement
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`discussions); Polar Corp. v. PepsiCo, Inc., 789 F. Supp. 2d 219, 239 (D. Mass. 2011)
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`(rejecting PepsiCo’s argument that a seven-month delay was unreasonable, and
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`finding irreparable harm).
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`Finally, the district court considered the balance of hardships, confirming,
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`4 In the Motion, PepsiCo states that “it is uncontroverted that PepsiCo did not have
`bad faith intent.” Mot. at 18. That is incorrect, as the district court recognized. See
`Appendix18–19 (“Here, Plaintiff asserts that Defendant adopted its mark in bad faith
`after meetings between the parties failed to produce a partnership.”).
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`5
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page8 of 77
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`foremost, that the court “is unpersuaded that the harm facing [PepsiCo] is not of its
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`own making.” Appendix21. In so finding, the district court quoted this Court’s law
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`that “[i]t is ‘axiomatic that an infringer . . . cannot complain about the loss of ability
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`to offer its infringing product.’” Id. (quoting Off-White, LLC v. Alins, No. 19 Civ.
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`9593, 2021 WL 4710785, at *5 (S.D.N.Y. Oct. 8, 2021) (quoting WPIX, Inc. v. ivi,
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`Inc., 691 F.3d 275, 287 (2d Cir. 2012)). In the Motion, PepsiCo complains that it has
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`“invested significantly” in its competing product, and will face costs in “stopping
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`the sales, distribution, and marketing” of the product. PepsiCo made that choice long
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`ago, eschewing the proposed partnership and the requests that PepsiCo choose a
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`different mark before pushing ahead. PepsiCo forged ahead anyway. That is no
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`hardship.
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`By comparison, as the district court found, Rise Brewing’s entire business is
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`on the line: “Plaintiff has submitted credible evidence that it faces an existential
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`threat from Defendant’s infringement.” Appendix21. And “Plaintiff’s corporate
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`identity is at risk if Defendant continues to saturate the market.” Id.
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`PepsiCo nonetheless asks for a stay of the preliminary injunction. PepsiCo
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`asked the district court for the same relief just last week (under Fed. R. Civ. P. 62(c)),
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`and the district court denied it. In denying the stay, the district court emphasized that
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`the preliminary injunction order was narrowly tailored in that, for example, PepsiCo
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`need not police third parties that it does not control. See Appendix323 (noting that
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`6
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page9 of 77
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`the injunction does not apply to PepsiCo’s product already in the control of “third-
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`party retailers over whom Defendant has no control”) (quoting Dkt. No. 149 at 23.)
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`In order to demonstrate entitlement to a stay, PepsiCo must meet a very high bar,
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`including making “a strong showing that [it] is likely to succeed on the merits” and
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`that it “will be irreparably injured absent a stay.” PepsiCo has demonstrated neither.
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`Nor has PepsiCo met the other required factors. The Motion should be denied.
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`FACTUAL BACKGROUND5
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`Rise Brewing and Its RISE Marks
`A.
`Founded in 2014, Rise Brewing was the first company in the United States to
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`offer a shelf-stable nitro cold brew coffee can using a nitrogen widget for a smoother,
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`creamier pour. See ECF No. 30, Decl. of Gyesky (“Gyesky Decl.) ¶¶ 3-7. Today,
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`Rise Brewing sells its shelf-stable canned drinks, such as lattes, tea lattes, and citrus
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`coffees, nationwide. Id., ¶¶ 4-13, 23.
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`Many of Rise Brewing’s marketing campaigns target the athletic and wellness
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`community. Its RISE-branded drinks are in the locker rooms of the New York
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`Yankees, Mets, and Giants, and mixed martial arts facilities. Rise Brewing has
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`partnered with the USA Surf Team, USA Climbing Team, and US Ski & Snowboard
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`Team, and was a sponsor of FOX Sports’ 2020 college football season. Id., ¶¶ 20-
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`5 Citations to the Factual Background section are to the briefing on Rise Brewing’s
`PI Motion in the district court, except as otherwise noted.
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`7
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page10 of 77
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`21. As a provider of coffee and tea-based drinks, Rise Brewing focuses on the
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`morning beverage drinker. Id.
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`The U.S. Patent & Trademark Office has granted Rise Brewing multiple
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`federal trademark registrations for its RISE family of marks. These registrations
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`prove the ownership and validity of the marks, as well as Rise Brewing’s exclusive
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`rights to use the marks in commerce. Rise Brewing’s federally registered marks are
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`set forth below:
`
`Mark
`RISE BREWING CO. (“BREWING CO.”
`disclaimed)
`
`RISE BREWING CO. (“BREWING CO.”
`disclaimed)
`
`RISE NITRO BREWING CO. (“NITRO
`BREWING CO.” disclaimed)
`RISE NITRO (“NITRO” disclaimed)
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`RISE & GRIND
`
`RISE MAKES YOU SHINE
`
`RISE-N-SHINE BLEND
`
`8
`
`Registration No. &
`Registration Date
`5,168,377
`March 21, 2017
`
`5,333,635
`November 14, 2017
`
`6,140,084
`September 1, 2020
`
`5,188,284
`April 18, 2017
`4,396,118
`September 3, 2013
`6,007,308
`March 10, 2020
`3,253,782
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`

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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page11 of 77
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`Mark
`(“BLEND” disclaimed)
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`Registration No. &
`Registration Date
`June 19, 2007
`
`See ECF No. 35, Decl. of Welch (“Welch Decl.”), Ex. A.
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`Rise Brewing also owns common law rights in additional marks, including
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`the standalone mark RISETM. That particular mark is featured on the kegs of Rise
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`Brewing’s original black nitro-brewed coffee and other products, as well as on Rise
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`Brewing’s website located at <risebrewingco.com> (all of Rise Brewing’s registered
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`and unregistered RISE-formative marks, collectively, the “RISE Mark”). See
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`Gyesky Decl. ¶¶ 14-18.
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`Rise Brewing has distinguished itself from its competitors, winning the 2017
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`Best New Product award from industry publication BevNet for its nitro cold brew.
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`Id., ¶ 22. More success followed, with a 2018 Beverage Innovation of the Year award
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`from Beverage Industry magazine, and a 2018 NEXTY Best New Organic Beverage
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`award. Id. Rise Brewing also won People Magazine’s 2019 award for Best Canned
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`Coffee for its canned nitro cold brew. Id.
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`PepsiCo and Its Unlawful Conduct
`B.
`PepsiCo is one of the largest food and beverage producers in the world.
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`PepsiCo owns hundreds of brands, 23 of which are “billion dollar” brands, i.e.,
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`brands with over a billion dollars of annual sales. See Welch Decl., Ex. B.
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`Prior to the launch of its infringing drink, PepsiCo was intimately familiar
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`9
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page12 of 77
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`with Rise Brewing, its RISE Marks, and drinks. As early as 2017, members of the
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`PepsiCo Innovation team met with Rise Brewing’s CEO, Grant Gyesky to discuss
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`partnership opportunities. See Gyesky Decl. ¶ 24. Rise Brewing, hopeful of a
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`positive partnership with a major player, explained its business model, history, and
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`the growing nitro beverage market to PepsiCo. Id. Jarrett McGovern, Rise
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`Brewing’s Chief Creative Officer, later met twice more with members of the
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`PepsiCo Innovation team, first on May 10, 2018, and again on January 24, 2019.
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`See ECF No. 33, Decl. of McGovern (“McGovern Decl.”), ¶¶ 4-8. PepsiCo team
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`members sampled Rise Brewing’s drinks, and at the January 24, 2019 meeting,
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`PepsiCo specifically requested that Rise Brewing provide samples of its canned
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`drinks. Id.
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`After multiple meetings with the PepsiCo Innovation team, PepsiCo asked
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`Rise Brewing to host “PepsiCo’s President and C-Suite group.” Id., ¶ 9. Mr.
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`McGovern was later introduced to Wing-Yan Choi, VP of M&A at PepsiCo, who
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`confirmed that Rise Brewing was on PepsiCo’s radar. Id., ¶¶ 12-13. However,
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`rather than acquire Rise Brewing or recognize its rights in its RISE Marks, PepsiCo
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`chose to take the valuable RISE Mark and launch its own competitive morning
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`caffeine drink under the same, infringing brand.
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`PepsiCo’s actions were not coincidental. As PepsiCo was meeting with Rise
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`Brewing, PepsiCo’s consumer insights division was identifying six occasions on
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`10
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page13 of 77
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`which consumers use PepsiCo products, noting the “biggest untapped moment for
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`energy drinks [being] 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
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`drink instead of a bitter cup of coffee.” See Welch Decl., Ex. C. In January 2021
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`PepsiCo announced its own drink to fill that gap—“Mtn Dew Rise,” or simply
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`“Rise.” PepsiCo positioned Rise for the morning caffeinated beverage drinker.
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`Fabiola Torres, PepsiCo’s chief marketing officer and senior VP for its energy
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`category said, “we’re excited to introduce the new Mtn Dew Rise Energy for those
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`looking for a morning boost with enhanced mental clarity and immune support that
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`helps you conquer the morning. . . .” Id., Ex. D.
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`In January 2021, upon learning of PepsiCo’s intended launch of a competing
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`RISE-branded product, Rise Brewing’s counsel wrote to PepsiCo regarding the
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`inevitable consumer confusion due to PepsiCo’s intended launch, given the
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`similarity of the parties’ drinks and target markets. See Gyesky Decl., ¶¶ 32-35.
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`PepsiCo refused to change course, instead flooding the market with advertisements
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`and hiring megastar LeBron James as the Mtn Dew RISE spokesperson.
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`C.
`
`The Parties’ Competing RISE-Branded Products and Highly
`Similar Marketing Strategies
`The parties’ products are in direct competition as morning energy drinks, sold
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`literally side-by-side. The parties’ similar advertising strategies also demonstrate
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`the drinks’ similarities. For example, Rise Brewing advertises its RISE drinks as
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`11
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page14 of 77
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`providing an added energy boost for the morning. See Gyesky Decl., ¶ 20. Mtn
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`Dew RISE is promoted as helping consumers “conquer the morning” and it’s first
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`60-second ad was entitled “The Morning Makes You.” See Welch Decl. Exs. D, E.
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`The parties’ social media posts reinforce that their respective RISE drinks are
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`morning beverages, with both parties tweeting about their drinks as a way to start
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`the day. See id., ¶¶ 7-10. Both drinks also target the health and wellness community.
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`Rise Brewing advertises its drink as organic and lower sugar, calories, and additives.
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`See Gyesky Decl, ¶ 21. PepsiCo has taken the exact same approach for Mtn Dew
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`RISE. PepsiCo’s CMO and SVP of Energy promoted the formula for Mtn Dew
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`RISE as “something better for the body without sacrificing flavor.” See Welch
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`Decl., Ex. C. PepsiCo’s promotions specifically compare Mtn Dew RISE to coffee,
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`also highlighting its juice content, 0g added sugar, and immune support. Id., ¶¶ 10-
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`12.
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`To further attract wellness-minded consumers, both companies promote their
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`drinks in connection with individual outdoor activities like surfing, snowboarding,
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`and climbing. Rise Brewing has partnered with the USA Surf Team, USA Climbing
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`Team, and US Ski & Snowboard Team. See Gyesky Decl. ¶ 21. Rise Brewing’s
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`social media posts frequently place its products in these athletic environments. See
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`Welch Decl., ¶ 8. PepsiCo has similarly partnered with snowboarders and surfers as
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`brand ambassadors for Mtn Dew RISE. Social media posts highlight PepsiCo’s RISE
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`12
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page15 of 77
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`products in these athletic environments. Id., ¶ 9.
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`Actual Confusion Has Already Occurred
`D.
`Unsurprisingly, as soon as PepsiCo launched its own RISE-branded drink,
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`consumer confusion began. Its retail partners have contacted Rise Brewing
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`personnel numerous times about promotions intended for Mtn Dew RISE, and other
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`retail partners have deferred placing orders for Rise Brewing’s products thinking
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`that their shelves were already fully-stocked with Rise Brewing products, when in
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`reality the shelves were stocked with PepsiCo Mtn Dew RISE products. Appendix6.
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`Direct consumers are also confused; Rise Brewing witnesses testified that, during
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`in-store product tastings, consumers often ask if Rise Brewing’s products are the
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`coffee version of Mountain Dew. Id.. As one Rise Brewing witness testified, the
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`instances of confusion are the “norm . . . not the exception.” Id..
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`E.
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`PepsiCo’s Infringement and the Irreparable Harm to Rise
`Brewing
`Rise Brewing is suffering irreparable harm from PepsiCo’s actions.
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`PepsiCo’s size, strength, and formidable marketing and distribution networks are
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`working full force in support of its new drink, and to the destruction of Rise
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`Brewing’s reputation and goodwill. Pepsi’s infringement has caused, in the words
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`of one long-time investor, an “existential threat” to the company that has directly led
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`to a loss of investors and a depletion of goodwill.
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`F.
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`The District Court Holds Two Hearings, Including a Full
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page16 of 77
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`Evidentiary Hearing, and Rules in Rise Brewing’s Favor
`The district court held a hearing on Rise Brewing’s motion for preliminary
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`injunction on September 9, 2021. Appendix5. Following this hearing, PepsiCo filed
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`a request for a full evidentiary hearing, which was granted on September 21, 2021.
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`Id.. The parties held the evidentiary hearing on October 8, 2021, at which time the
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`Court heard from multiple witnesses for both Rise Brewing and PepsiCo. Tellingly,
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`PepsiCo chose not to present either of its survey experts. Rise Brewing, however,
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`presented its survey expert, Leon Kaplan, who testified about the serious flaws in
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`PepsiCo’s reverse confusion survey, the only one relevant to Rise Brewing’s motion
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`for preliminary injunction, as well as multiple witnesses who testified about the
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`rampant confusion Rise Brewing was experiencing in the marketplace. Appendix6.
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`On November 4, 2021, the district court issued a thorough, 24-page order
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`preliminarily enjoining PepsiCo from further sales of its infringing Mtn Dew RISE
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`products. In its order, the Court found that the totality of the evidence showed that
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`Rise Brewing had shown “not only a likelihood of success on the merits,” “but also
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`a clear or substantial likelihood of success on the merits,” and that PepsiCo had
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`failed to rebut the presumption of irreparable harm to which Rise Brewing was
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`entitled. Appendix8. As to irreparable harm to PepsiCo, the district court rejected
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`PepsiCo’s arguments, finding that the harm facing PepsiCo was of its own making
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`(Appendix21) (citing Off-White, LLC v. Alins, No. 19 Civ. 9593, 2021 WL 4710785,
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page17 of 77
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`at *5 (S.D.N.Y. Oct. 8, 2021) (“[I]t is ‘axiomatic that an infringer . . . cannot
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`complain about the loss of ability to offer its infringing product.’” (quoting WPIX,
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`Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 2012))).
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`PepsiCo filed a Rule 62(c) motion with the district court on November 5, 2021,
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`which was rejected later that day. Appendix321. This Motion followed.
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`ARGUMENT AND CITATION OF AUTHORITY
`
`The district court properly denied the emergency motion for stay that PepsiCo
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`brought before it on November 4, 2021, and this Court should do the same. While
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`different rules of procedure govern a district court’s and an appellate court’s power
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`to stay an order pending appeal, the factors are generally the same, namely, “(1)
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`whether the stay applicant has made a strong showing that he is likely to succeed on
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`the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
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`whether issuance of the stay will substantially injure the other parties interested in
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`the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S.
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`770, 776, 107 S. Ct. 2113, 2119 (1987); see also In re World Trade Ctr. Disaster
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`Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (footnote omitted). “In determining
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`whether there is a substantial likelihood that the moving party will prevail on the
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`merits of his appeal,” this Court seeks “to determine whether the district court
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`applied the proper legal principles and acted within the bounds of its discretion,
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`[bearing] in mind that the [district] court’s findings of fact will be upheld unless they
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page18 of 77
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`are clearly erroneous . . . .” United States v. E. Air Lines, Inc., 923 F.2d 241, 244 (2d
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`Cir. 1991) (citing Fed. R. Civ. P. 52(a). An evaluation of these factors clearly shows
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`that PepsiCo’s Emergency Motion for Stay should be denied.
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`First, PepsiCo has failed to make a strong showing that it is likely to succeed
`
`on the merits of its claim. In fact, the opposite is true – it is overwhelmingly clear
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`that Rise Brewing, not PepsiCo, will prevail. This was not a close case. After
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`considering the ample evidentiary record and holding two separate hearings,
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`complete with live testimony allowing the district court to make determinations of
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`credibility, the court made it abundantly clear that not only was Rise Brewing likely
`
`to succeed, it had shown a “clear or substantial” likelihood of success. While
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`PepsiCo attempts to relitigate the PI Motion in its Emergency Motion to Stay, its
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`mischaracterizations and misrepresentations of the evidence do nothing to change
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`the fact that the district conducted an exhaustive, robust analysis of the likelihood of
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`confusion factors, and found they overwhelmingly fell in favor of Rise Brewing.
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`The district court’s findings of fact were not close to being clearly erroneous, and
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`PepsiCo cannot and does not cite to an actual error of law – it simply does not agree
`
`with the district court’s proper application of the law to the troubling facts of this
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`case. Indeed, the case was so strong that the district court did not even need Rise
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`Brewing to respond to PepsiCo’s emergency motion to stay the injunction before
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`denying it.
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`Case 21-2786, Document 25, 11/08/2021, 3207650, Page19 of 77
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`With regard to the second and third factors, PepsiCo will not be irreparably
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`injured absent a stay, but Rise Brewing would absolutely be harmed by the granting
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`of one. The district court considered this, and found that “substantial rebranding
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`costs, lost sales and harm to its goodwill” were outweighed by the “credible evidence
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`that [Rise Brewing] faces an existential threat from Defendant’s infringement.”
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`(emphasis added) In fact, given PepsiCo’s conduct, the district court specifically
`
`noted that it was “unpersuaded that the harm facing Defendant is not of its own
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`making[,]” and when PepsiCo first requested an emergency stay, it held that
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`“Defendant has not shown irreparable injury absent a stay.”
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`Finally, the public interest favors a stay because, as the district court properly
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`held, “the public has a protectable interest in being free from confusion, deception
`
`and mistake[.]” (citing Goat Fashion Ltd. v. 1661, Inc., No. 19 Civ. 11045, 2020
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`WL 5758917, at *16 (S.D.N.Y. Sept. 28,