| PepsiCo Is
Accused of Stealing Rise Name and Idea In
SDNY Suit Now Stay Issued & Appealed
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
Nov 5 – 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.
The case is
Riseandshine Corporation v.
Pepsico, Inc., 21-cv-6324
(Schofield)
***
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