In a trademark dispute under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), and New York’s law of trademark and unfair competition, PepsiCo, Inc., the Defendant, which marketed a canned energy drink under the mark “MTN DEW RISE ENERGY,” appeals from a preliminary injunction imposed on it by the United States District Court for the Southern District of New York (Lorna Schofield, J.) at the instance of the Plaintiff, RiseandShine Corporation, d/b/a Rise Brewing (“Rise Brewing”), which sells nitro-brewed canned coffee (and also canned tea) under the name RISE. It is undisputed that Plaintiff began using the RISE mark prior to Defendant’s use of its mark. The district court concluded that Defendant’s conduct in using RISE caused a likelihood of confusion and that Plaintiff was likely to succeed on the merits. We find that the grant of a preliminary injunction was premised on two significant errors. We therefore vacate the preliminary injunction.
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