![]() “When you first applied for trademark, you were rejected on the grounds that were already a number of Rise, especially with respect with coffee," Leval said. Judge Leval appeared vexed in particular that Rise would claim infringement despite having entered the market “with open eyes,” knowing that the coffee and beverage field was filled with other “Rise”-branded drinks. “This seems to me to be a very weak mark, as a matter of law," he continued. Rise Brewing should have anticipated such consumer confusion, Leval chided, because that is a “risk that one takes on when you choose a weak mark.” ![]() Circuit Judge Pierre Leval, a Clinton appointee who in 1990 penned an influential analysis on the transformative-use doctrine for Harvard Law Review titled “Toward a Fair Use Standard.” The argument made little impression, however, on U.S. Paul Tanck, an attorney for the coffee company with the firm Alston & Bird, urged the Second Circuit to affirm, telling the court Wednesday that “there was actual confusion” among shoppers who saw the two Rise-branded drinks near each other on store shelves where coffee drinks, energy drinks and coffee-flavored energy drinks commingled. District Judge Lorna Schofield warned specifically that Rise Brewing’s business could face an "existential threat" from Mountain Dew's product. ![]() PepsiCo dropped the word "Rise" from its Mtn Dew Rise Energy product roughly two weeks after a New York federal judge ruled in November that drink was likely to confuse customers when placed on the same store shelves as wares from the canned coffee company Rise Brewing. Verdict: Pitch Black is too dang syrupy, though Mountain Dew Black Label is an OK soda.MANHATTAN (CN) - The Second Circuit looked ready Wednesday to lift the injunction that forced parent company PepsiCo to rename its new Mountain Dew energy drink last year. Black Label does move away from the taste of original Dew so much that it’s basically a new drink. (Despite the taste and the look of the can, it is not an energy drink.) Unlike Pitch Black, I could probably enjoy a whole glass of this. You do also get a taste of “herbal bitters,” similar to that weird tangy fizziness in an energy drink. There are more hints of orange soda – even fruit punch – which actually cuts down on the sugar overload, at least taste-wise. Regardless, Mountain Dew Black Label has a similar array of flavors to Pitch Black, but not as intensely sweet. The only demographic I can think of are rich children who want to pretend they’re fancy drunks like their parents. I’m not entirely sure to whom this is being marketed. I’m not putting on pants to drink a soda or even to go buy one. It smells like melted grape Jolly Rancher's. RELATED LINKS: Kim Kardashian robbery probe: Driver, 2 others freed DNA found | Bad For You – Hershey's Cookie Layer Crunch | Bad For You - The Aisle of Misfit Treats In a very tight race, Pitch Black triumphed over Baja Blast, sending the latter back to being a Taco Bell-exclusive. As part of what the company called DEWcision2016, the two flavors of Pitch Black and Baja Blast were pitted head-to-head. Over the years, there have been dozens of limited-time flavors or variations of Mountain Dew, so many that they occasionally put it up to the public to vote on which flavor should become permanent. The Dew also has slightly more caffeine than the average soda, which has helped to make it a favorite for younger people – what with the video games and the skateboards and all. I prefer the lighter-tasting lemon-lime-ness of Sprite, while this is more of a blend of flavorings. Mountain Dew is very sweet and syrupy, with the citrus flavors mostly coming in the aftertaste. After drinking, I believe there was no more than the usual amount. After opening, I double-checked to see if there were any cigarette ashes. ![]() ![]() As a baseline taste for the others, I bought a can of original Mountain Dew. Despite both drinks having the word 'Black' in them, it's clear that neither is actually black. ![]()
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