The Supreme Court will decide who measures trademark strength. Here is what measuring it looks like.

There are 109 live US trademarks in the food and beverage classes that contain the word RISE. The USPTO has made exactly one of them give up the word.

Hold onto that number. It is the cleanest illustration I have found of a question the Supreme Court agreed to answer on June 29: when a court decides whether a trademark is strong or weak, is that a finding of fact, which a jury can make, or a conclusion of law, which only a judge makes?

I am a data guy, not a trademark attorney. None of this is legal advice. But I spend my days inside the USPTO's register, and the thing that struck me about this case is that "strength" is not the soft, unmeasurable idea it sounds like. The register has been measuring it for decades. Most founders have never been shown how to read it.

The case, in plain terms

Rise Brewing is a small company that sells nitro-brewed canned coffee. It owns RISE BREWING CO. and RISE NITRO BREWING CO., both registered and both still live. In 2021, PepsiCo launched a canned energy drink called Mtn Dew Rise Energy. Rise sued for trademark infringement.

Rise won a preliminary injunction in the district court. The Second Circuit vacated it, and later affirmed a judgment for PepsiCo. The reason Rise lost matters more than the result: the Second Circuit treats the inherent strength of a mark as a question of law. A judge looks at the mark, decides how strong it is, and that decision can end the case before a jury ever hears it. Every other federal appeals circuit treats strength as a question of fact.

The Supreme Court took the case, RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016. The question it agreed to decide is narrow and blunt: "Whether trademark strength is a question of fact in a likelihood-of-confusion analysis under 15 U.S.C. § 1114."

For a founder, the practical translation is this. Whether your brand dispute gets to a jury may currently depend on which side of the Hudson you get sued on. That is the kind of thing the Supreme Court exists to fix.

What "measuring strength" actually looks like

Trademark strength has two halves. How distinctive is the word itself, and how crowded is the field of people already using it. Both are visible on the register, and both appear by name in the du Pont factors, the checklist the USPTO works through whenever it decides whether two marks are likely to be confused.

Measure one: disclaimers. When your brand name contains a word that merely describes what you sell, the USPTO will still register the whole name, but it makes you disclaim that word. A disclaimer is the office saying: you can have the combination, but nobody gets to own this ordinary word by itself. How much a disclaimed word still counts when two marks are compared side by side is its own line of cases, headed by In re National Data.

That makes disclaimer frequency a running tally of the USPTO's own repeated judgments about a word. Not opinion. Decisions, thousands of them.

Here is the tally for live marks in Nice classes 29, 30, 32 and 33, the food and beverage aisles:

Word in the mark	Live marks	Disclaimed
COFFEE	5,080	87.1%
ENERGY	1,132	74.2%
BREW	608	68.9%
NITRO	45	44.4%
GOLD	941	13.7%
PEAK	143	2.1%
RISE	109	1.8%
MONSTER	107	0%

COFFEE is disclaimed nearly nine times in ten, because in this aisle it is the product. RISE sits at the opposite end. And the raw 1.8% overstates it. Two of the 109 carry a disclaimer that mentions "rise," but one is a pizza mark whose disclaimed text is the phrase "BAKE TO RISE CRUST PIZZA WITH BAKE AND SERVE TRAY," not RISE standing alone. The only mark that truly disclaims RISE by itself is ULTIMATE RISE, registered back in 2000.

One out of 109. By this measure, the USPTO has never treated RISE as a word that describes coffee.

Measure two: crowding. Now the other half, and it cuts the other way.

Those 109 RISE marks are held by 89 different owners.

That is a crowded field, and crowding is real evidence of weakness. The logic is the same as a street with nine restaurants all called some variation of "Bella." Nobody hears "Bella" and thinks of one kitchen anymore. The word stops doing the one job a trademark has, which is telling you who made the thing. Courts take this seriously; it is the heart of the Juice Generation line of cases, where extensive third-party use of a phrase narrowed how much protection the senior owner got. Jack Wolfskin is the same reasoning applied to design elements rather than words. At the far other end sits fame, where strength peaks; Coach Services v. Triumph Learning is the case on how much evidence claiming it actually takes.

Widen the lens and the crowding is worse. Across all classes, 1,524 live registrations contain the word RISE, spread across 1,183 different owners.

Why this is the perfect case for the question presented

Look at what the register just told us.

Rarely disclaimed, so the USPTO does not think RISE describes coffee. Heavily shared, so the marketplace has diluted it. Two honest measurements from the same public record, pointing in opposite directions.

Two reasonable people can weigh those and land in different places. In most of the country, that disagreement goes to a jury. In the Second Circuit, a judge resolved it and the case was over.

You do not need a view on who should win to see why the Supreme Court took it.

Two things the register shows that the briefs do not

Rise Brewing could not register the obvious version of its own name. In 2015 it filed RISE COFFEE CO. The application went abandoned in February 2017 after an ex parte appeal, the internal appeal you file inside the USPTO when an examiner refuses you. The company arguing that RISE is strong could not get RISE COFFEE CO. through the front door. It succeeded with RISE BREWING CO., a longer, more distinctive combination. You can see the whole portfolio, wins and losses, on the RiseandShine Corporation owner page.

PepsiCo never registered the name it went to court over. Between January 2019 and 2025, PepsiCo filed 57 trademark applications beginning with MTN DEW. MTN DEW MAJOR MELON, MTN DEW FROST BITE, MTN DEW LIVE WIRE, MTN DEW BAJA BLAST. Not one is MTN DEW RISE. In November 2021, months after the product launched and the lawsuit started, it filed MTN DEW ENERGY instead, which registered in 2022.

A company with one of the world's most sophisticated trademark departments launched a product, got sued over the name, and never filed for it. Read that however you like. It is on the public record either way.

What a founder should take from this

The Supreme Court will sort out who decides. That does not change what gets decided, and it does not change that the evidence is sitting in public right now.

Before you commit to a name, run two counts in your category. How many live registrations already contain your key word, and how often the USPTO has forced people to disclaim it. A word that is rarely disclaimed and rarely used is a real asset. A word that is rarely disclaimed but used by 89 competitors is a lawsuit with an uncertain ending, which is the expensive kind.

Rise Brewing has been litigating since 2021 and is now heading to the Supreme Court. The crowding around RISE was visible on day one, for free.

Strength is not vibes. Somebody is going to measure it. Better it is you, early, than a court, five years and several appeals later.

---

The counts here come from the USPTO's public register: live marks in Nice classes 29, 30, 32 and 33 whose mark text contains the word, matched against disclaimer statements in the USPTO case-file record. Case details come from the Supreme Court docket, No. 24-1016.