The Missing Jury: Fact, Law, and Who Actually Decides Trademark Confusion

Abstract

On June 29, 2026, the Supreme Court granted certiorari in RiseandShine Corp. v. PepsiCo to decide whether a trademark's strength is a question of fact, typically for a jury, or a question of law for a judge. This Essay measures the assumption beneath the question: that a jury is available to receive it. Across 10,977 federal likelihood-of-confusion opinions, judges made 97.96% of merits confusion determinations; juries made 2.04%. The strength factor specifically was graded at a jury trial 2.04% of the time it was graded at all, a different cohort landing on the same rounded share. Docket-level data confirm the picture from outside the opinions: in fiscal 2025, just twenty-seven trademark cases in the entire federal system reached a jury. Four empirical studies across twenty years have now converged on this result, culminating in the largest corpus and finest resolution yet. This Essay is neutral on the question presented and specific about the terrain: whichever decision-maker wins the label, the question will operate almost entirely at summary judgment, in the rare contested case, on a paper record. In operation, either answer regulates a judge, and the choice is between standards of judicial self-restraint, inside a multifactor test whose accumulated evidence now counsels simplification.

Keywords: trademark, likelihood of confusion, trademark strength, RiseandShine v. PepsiCo, question of fact, question of law, jury, summary judgment, Supreme Court, trademark infringement, Lanham Act, multifactor test, Polaroid factors, conceptual strength, commercial strength, judge-jury allocation, fact-law distinction, standard of review, Seventh Amendment, civil jury, jury trial, bench trial, preliminary injunction, certiorari, Second Circuit, empirical legal studies, judicial decision-making, judicial behavior, trademark litigation, civil procedure, federal courts, intellectual property

JEL Classification: K41, O34, K11, K40