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Merisant Co. v. McNeil Nutritionals, LLC

United States District Court for the Eastern District of Pennsylvania

March 2, 2007, Decided ; March 2, 2007, Filed



 [*511]  Memorandum and Order

Gene E.K. Pratter, J.

Merisant Company, Inc. ("Merisant") alleges that McNeil Nutritionals, LLC and McNeil-PPC, Inc. engaged in false and misleading advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125 [**2]  , and in violation of the Pennsylvania common law of unfair competition. The parties have engaged in extensive discovery activities, leading to their submission of various summary judgment motions as well as dueling Daubert motions. Specifically, the McNeil parties have filed a motion for summary judgment, and Merisant moves for partial summary judgment seeking to preclude McNeil from presenting an affirmative defense of "unclean hands." In addition, Merisant and McNeil have each filed a motion alleging that testimony from one or more of the opposing party's expert witnesses is inadmissible under Rule 702 of the Federal Rules of Evidence and pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and its progeny. McNeil filed a motion to exclude the testimony of Dr. James Fisher, and Merisant filed a motion to exclude the testimony of Dr. Steven Munger. 1 For the reasons detailed below, the Merisant motion concerning the unclean hands defense will be granted; the remainder of these specific motions will be denied.


The following factual background appears in the parties' respective, very thorough Statements of Facts presented in their Motions.

Merisant is a privately held company that manufactures premium brands of artificial sweeteners, including Equal, 2 NutraSweet and Canderel. Merisant's Statement of Facts PP 1, 5. The sweetening [*512]  ingredient in Equal is aspartame. Id. PP 2, 13; McNeil's Statement of Facts P 3. The other ingredients in Equal are dextrose and maltodextrin. Merisant's Statement of Facts P 13.

 [**4]  McNeil Nutritionals, LLC is a Delaware limited liability company with its principal place of business in Fort Washington, Pennsylvania. Compl. P 7. McNeil-PPC, Inc. is a New Jersey corporation with a principal place of business in Skillman, New Jersey. Compl. P 8. McNeil Nutritionals, LLC and McNeil-PPC, Inc. (collectively, "McNeil") market and distribute an artificial sweetener under the brand name Splenda. McNeil's Statement of Facts P 4. The sweetening ingredient in Splenda is sucralose. Id. Sucralose is an artificial sweetening ingredient that is made through a process that begins with sucrose, i.e., sugar, and then replaces three of eight hydroxyl groupings on the sucrose molecule with three chlorine atoms. Id. P 5. The other ingredients in Splenda are maltodextrin and dextrose. Merisant's Statement of Facts P 17. Unaltered sugar / sucrose is not an ingredient in Splenda. Id. Conversely, Splenda does not contain unaltered sugar / sucrose. Id.

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515 F. Supp. 2d 509 *; 2007 U.S. Dist. LEXIS 14780 **; 2007-1 Trade Cas. (CCH) P75,629


Subsequent History: Motion granted by, in part, Motion denied by, in part Merisant Co. v. McNeil Nutritionals, LLC, 242 F.R.D. 303, 2007 U.S. Dist. LEXIS 27676 (E.D. Pa., Apr. 9, 2007)

Prior History: Merisant Co. v. McNeil Nutritionals, LLC, 2005 U.S. Dist. LEXIS 15978 (E.D. Pa., Aug. 4, 2005)


sugar, advertising, consumers, argues, taste, unclean hands, sweeteners, products, Wax, positioning, misleading, statement of facts, marketing, artificial, Lanham Act, packaging, sucralose, laches, artificial sweetener, brand, profits, literally, launched, summary judgment, parties, tagline, motion to exclude, summary judgment motion, expert testimony, public interest

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Supporting Materials, Evidentiary Considerations, Absence of Essential Element, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Judgments, Evidentiary Considerations, Opposing Materials, Accompanying Documentation, Business & Corporate Compliance, Federal Unfair Competition Law, Lanham Act, Scope, Trademark Law, False Designation of Origin, False Advertising, Elements of False Advertising, Evidence, Preponderance of Evidence, Judicial Officers, Judges, Discretionary Powers, Preliminary Considerations, Equity, Defenses, Demurrers & Objections, Affirmative Defenses, Allocation, Governments, Legislation, Statute of Limitations, Inferences & Presumptions, Presumptions, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Maxims, Clean Hands Principle, Defenses, Appropriateness, Likelihood of Confusion, Factors for Determining Confusion, Comparison of Advertising, Consumer Confusion, Surveys as Evidence of Confusion, Courts, Remedies, Clear & Convincing Proof, Admissibility, Expert Witnesses, Expert Witnesses, Daubert Standard, Procedural Matters, Preliminary Questions, Witness Qualifications, Testimony, Qualifications, Helpfulness