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By Matthew Russell Lee, Patreon
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SDNY COURTHOUSE, Dec 16 – Grant Gyesky and two others founded Rise Brewing in New York in 2014, first sold its caffeinated organic beverage in Brooklyn and are now suing PepsiCo for its Mountain Dew "Rise" product.      

  On October 8 U.S. District Court for the Southern District of New York Judge Lorna G. Schofield held a proceeding. Inner City Press covered it. 

 Gyesky testified that after he met with PepsiCo, the name was stolen and the Mountain Dew copycat was launched.

On cross examination, he could not name the address or attendees, other than one, at the meeting. And Pepsi's lawyer focused on other Rise-named products, and a different position in North Carolina litigation.  

 Midwest sales agents of Rise took the stand, describing being muscled or misled out of Kroger supermarkets in Illinois and Kentucky. It smacks of a David and Goliath story.

  In November, after Inner City Press reported the above on October 9, others reported the stay: "AMENDED OPINION AND ORDER: Having considered the parties' written submissions and the evidence and argument presented at the September 9, 2021, oral argument and October 8, 2021, evidentiary hearing, for the foregoing reasons, the Court GRANTS Plaintiff's motion for a preliminary injunction.

Defendant is hereby preliminarily restrained and enjoined as follows: 1. For the purposes of this Preliminary Injunction Order, the following definitions shall apply: a. The "Challenged Mark" shall mean the following mark: MTN DEW RISE ENERGY. b. The "Market" shall mean the United States. c. "Advertisement" shall mean any advertisement, flyer, brochure, billboard, display, television commercial, radio commercial, Internet commercial or similar communication of marketing, advertising, sale or promotional information or materials directed to the general public or segments of the general public. 2. Subject to paragraph 7 below, Defendant shall not use or display the Challenged Mark in the Market in connection with the promotion, sale or distribution of single-use, canned energy beverages. 3. Subject to paragraph 7 below, Defendant shall not use or display in the Market any mark that is confusingly similar to Plaintiff's Mark in connection with the promotion, sale or distribution of single-use, canned energy beverages. 4. Subject to paragraph 7 below, Defendant shall not use or display the Challenged Mark in any Advertisement that will be or is intended to be circulated, displayed or broadcast in the Market. 5. Defendant shall not assist, aid or abet any other person or business entity in engaging in any of the activities prohibited by this Order. 6. This Order is binding upon Defendant and its agents, servants and employees, and upon all persons in active concert or participation with it or them (but not any third-party retailers over whom Defendant has no control) who receive actual notice of this Order by personal service or otherwise. Subject to paragraph 7 below, Defendant shall provide such actual notice. 7. Defendant shall comply with this Order within seven days of its effective date. 8. This Order shall take effect upon the posting of a bond as set forth below, and shall remain in effect until the conclusion of the trial of this matter; provided, however, that this Order may be dissolved or modified upon appropriate motion and a showing of good cause to this Court. 9. Plaintiff shall post a bond in the amount of $250,000 as soon as reasonably practicable after entry of this Order, but in any event no later than one week from the date of this Order. 10. Within eight days of the effective date of this Order, Defendant shall file a report with the Court, setting forth in detail the manner in which Defendant has complied with this Order."

  Pepsi, in Goliath form, has appealed - and gotten a stay of the stay, at least until a three judge panel can hear it: "ORDER of USCA (Certified Copy) as to [153] Notice of Interlocutory Appeal, filed by Pepsico Inc. USCA Case Number 21-2786. Appellant filed an emergency motion for a stay of the district court's preliminary injunction order pending appeal. The Court grants an administrative stay of the preliminary injunction until it can be considered by the next available three-judge motions panel. In granting this administrative stay, the Court intimates no view on the merits of the stay motion or the preliminary injunction order.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit."

In December, Pepsico informed Judge Schofield they have renamed the product MTN DEW ENERGY, informing retailers of this on November 8.  They acknowledge that some MTN DEW RISE ENERGY products are still on sale; they say these are the property of the retailers.

  The parties on December 16 told Judge Schofield they have agreed to limit the total number of interrogatories to 25.

The case is Riseandshine Corporation v. Pepsico, Inc., 21-cv-6324 (Schofield) 

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