| PepsiCo
Accused of Stealing Rise Name Now In
Camera Review and Starbuck Seeks to
Intervene
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
May 6 – 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, 2021 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.
Pepsi, in
Goliath form, appealed - and
got a stay of the stay, at
least until a three judge
panel can hear it: "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.
On May 6, 2022
Magistrate Judge Sarah L. Cave
held another lengthy discovery
conference and Inner City
Press covered it. Judge Cave
ruled, "ORDER: Having reviewed
the parties' submissions, and
having heard the parties'
arguments during the lengthy
discovery conference held
today, May 6, 2022, the Court
orders as follows: Pepsi's
request for an order
compelling RiseandShine "to
produce documents responsive
to these RFPs, or if it is
unable to locate responsive
documents, to file written
responses stating that no
documents exist and outlining
steps taken to attempt to
locate them" is DENIED WITHOUT
PREJUDICE. RiseandShine shall
promptly identify ten withheld
third-party communications
concerning the use of "Rise"
as to which it believes Fed.
R. Evid. 408 may apply (the
"Rule 408 Exemplars"). As
discussed at the conference,
the Rule 408 Exemplars shall
include communications with
"Rise Up," if any exist. The
Court will conduct an in
camera review of the Rule 408
Exemplars to determine
relevance and the
applicability of Rule 408.
RiseandShine's request for an
order compelling Pepsi to
produce documents and
information responsive to its
requests regarding Starbucks
Nitro is DENIED WITHOUT
PREJUDICE, pending the
resolution of Pepsi's
objections to this Court's
Order dated April 14, 2022
(ECF No. 221) and Starbucks'
motion to intervene." Watch
this site.
The case is
Riseandshine Corporation v.
Pepsico, Inc., 21-cv-6324
(Schofield / Cave)
***
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