The Supreme Court's decision in RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016 (cert. granted June 29, 2026) could reshape how litigators strategize in trademark infringement lawsuits where strength of the mark is a deciding factor. When a jury decides strength of the mark, summary judgment is harder to win and review on appeal is deferential. Putting that decision to the judge flips that script. Where strength of the mark entails analysis of conceptual strength (arguably more legal in nature than factual) and consumer perception (arguably more factual in nature than legal), I'm very interested to see how SCOTUS will come out.  

Strength of the mark is often one of the more difficult to assess aspects of a trademark infringement claim, no matter which side you're on, and especially when conceptual strength is perhaps weak, but consumer perception is arguably strong. If that question—which feels very fact-based—can be decided early in the case by a judge, it is likely to change not only litigation strategy but settlement strategy, especially as it becomes clear what kind of evidence judges (as opposed to juries) find persuasive. It may result in cost savings as more questionable claims relying on overstatement of rights are cut short early on. But it may also mean less access to juries—the actual audience trademark law is meant to protect (the ordinary consumer)—for less traditionally or obviously “strong” marks.

Stay tuned. This one will matter.