Full opinion text
OPINION & ORDER DOUMAR, District Judge. This matter is before the Court on Plaintiffs Motion for Partial Summary Judgment and Defendant’s motion entitled “Motion to Dismiss, for Judgment on the Pleadings, and for Summary Judgment.” Plaintiff, X-IT Products L.L.C. (“X-IT”) moves for partial summary judgment against Defendant Walter Kidde Portable Equipment (“Kidde”) on Counts I (Copyright Infringement), IV (Breach of Contract), and V (Misappropriation of Trade Secrets) of its eight-count Amended Complaint. Kidde, meanwhile, moves for summary judgment on all eight counts of XIT’s Amended Complaint, including Counts II (False Designations Under Section 43(a) of the Lanham Act), III (False Advertisement Under Section 43(a) of the Lanham Act), VI (Unfair Competition), VII (Tor-tious Interference), and VIII (Unjust Enrichment and Constructive Trust). Kidde’s Brief in Opposition to X-IT’s Motion for Partial Summary Judgment raises an additional matter for the Court to consider as well. Specifically, Kidde argues that X-IT’s unclean hands bar the entry of summary judgment in its favor and warrant the entry of summary judgment in Kidde’s favor on all claims. On May 17, 2001, however, X-IT filed a Motion to Strike Kidde’s Unclean Hands Evidence and Argument. Additionally, X-IT has filed a Rule 56(f) Motion to Refuse the Application for Judgment on Kidde’s Motion for Summary Judgment, asserting that additional discovery is necessary to further rebut Kidde’s Motion for Summary Judgment, and that entry of summary judgment in favor of Kidde is therefore inappropriate at this time. This Court heard argument on all of these motions on May 23, 2001 and took the matter under advisement at that time. For the reasons set forth below, this Court GRANTS X-IT’s Motion for Partial Summary Judgment on Count I on the issue of liability with respect to Kidde’s infringement of X-IT’s copyright for use in Kid-de’s packaging, sell-sheets, and PowerPoint presentation at the 1999 National Hardware Show. In addition, for the reasons set forth below, the Court GRANTS (1) Kidde’s Motion for Summary Judgment on Count IV with regard to X-IT’s claim that Kidde misused X-IT’s actual and potential customer account list; (2) Kidde’s Motion for Summary Judgment on Count V with regard to X-IT’s claim that its customer account list constitutes a trade secret; and (3) Kidde’s Motion for Summary Judgment on Count VII as to X-IT’s tortious interference claim. X-IT’s Motion to Strike Kidde’s Unclean Hands Evidence and Argument is GRANTED IN PART and DENIED IN PART. The Court STRIKES Kidde’s allegations of litigation misconduct on the part of X-IT, but will hear evidence regarding X-IT’s alleged pre-litigation misconduct. In all other respects, X-IT’s Motion for Partial Summary Judgment and Kidde’s “Motion to Dismiss, for Judgment on the Pleadings, and for Summary Judgment” are hereby DENIED. I. Factual Background A. X-IT’s Formation and the X-IT Ladder Andrew Ive (“Ive”) and Aldo DiBelardi-no (“DiBelardino”) co-founded X-IT in July of 1997 while Ive and DiBelardino were classmates at Harvard Business School. Ive and DiBelardino formed XIT to produce and market a “web-style” emergency escape ladder that the two first conceived, designed, and created in 1996 and 1997 as a project for their Product Development course at Harvard. See Am. Compl. ¶¶ 5, 6, & 9. X-IT launched a production version of its Emergency Escape Ladder (hereinafter the “X-IT Ladder”) in August of 1998. See Pl.’s Opp. Ex. 2, DiBelardino Dep. at 429. In June of 1998, Kevin Dodge (“Dodge”), a former classmate of Ive’s and DiBelardino’s at Harvard, joined X-IT as its Chief Financial Officer. The X-IT ladder weighs approximately seven (7) pounds and is packaged for sale in a box measuring approximately 15 inches by 7-1/2 inches. See Am. Comp. ¶ 9. The ladder, which has a weight rating of over 1,000 pounds, is constructed of mesh-webbed railings and stackable or “nested” aluminum rungs. See id. ¶¶ 9, 11. The X-IT ladder’s “nesting” design allows the rungs to easily fit together during storage. See id. ¶ 11. X-IT maintains that this feature also allows for compact storage and “quick tangle-free deployment in the event of an emergency.” Id. According to X-IT, the smaller size of its ladder, the “unique nesting design,” and the innovative graphics on the box made the X-IT ladder inherently distinctive from any other emergency fire escape ladder on the market at the time it was introduced. See id. Some discussion of the unique graphics on X-IT’s packaging is appropriate at this time, since many of X-IT’s claims in the instant case center around the artwork contained therein. The undisputed evidence clearly indicates that the creativity behind X-IT’s packaging artwork came from X-IT’s founders, Ive and DiBelardi-no. X-IT (1) designed the house logo; (2) conceived the house diagram; (3) chose the fireman’s picture; (4) chose the features to be listed in the bullet lists; (5) conceived the “1,2,3” deployment instructions; (6) built the set for the photograph that Becker eventually took; (7) selected the models (DiBelardino’s nephew and sister-in-law) that appeared in the photograph; and (8) employed a photographer, Joel Becker (“Becker”) of Becker-Cline Digital Photography to take a picture of the models and set that X-IT constructed. See Pl.’s Mot. Ex. 17, Ive Aff. ¶¶ 5-9, 11; Pl.’s Mot. Ex. 2, DiBelardino Aff. ¶¶ 5-6; Pl.’s Mot. Ex. 3, Becker Aff. ¶¶ 3-4. Becker took the photograph in early June 1998, with X-IT paying the invoice for Becker’s services on June 10, 1998. See Pl.’s Mot. Ex. 3, Becker Aff., ¶¶ 5-8. At the time of payment on June 10, 1998, Becker orally transferred all copyright rights to the photographs to X-IT. See id. ¶ 5; Pl.’s Mot. Ex. 17, Ive Aff. ¶ 10; PL’s Mot. Ex. 2, DiBelardino Aff. ¶ 7 & Exs. B, C. This oral assignment was subsequently memorialized in two written assignment agreements in April 2000 and April 2001. See PL’s Mot. Ex. 2, DiBelardino Aff. Exs. B & C. Finally, it is undisputed that on June 9, 2000 the U.S. Copyright Office issued two certificates of registration to X-IT covering both the photograph on X-IT’s box and the cover art on X-IT’s packaging. See PL’s Opp. Ex. 44, Kidde’s Response to X-IT’s First Request for Admission 48; PL’s Opp. Ex. 49, XIT 001266 — XIT 001268 (X-IT’s certificates of registration from the copyright office). B. The X-IT Case Study In April of 1998, Harvard Business School Publishing published a Case Study about X-IT and the X-IT ladder (hereinafter the “X-IT Case Study”). See Def.’s Mot. Ex. 13, X-IT Case Study. Professors Myra Hart (“Hart”) and Marco Iansiti (“Iansiti”), both of whom invested in X-IT, prepared the X-IT Case Study. Although the X-IT Case Study was premised on X-IT and the X-IT ladder, certain information included within the Case Study was not based on actual information from X-IT or its founders, but was deliberately conceived and used just for the Case Study. See PL’s Opp. Ex. 9, Hart Dep. at 21, 106-10; PL’s Opp. Ex. 10, Iansiti Dep. at 194-95. The X-IT Case Study contained an “X-IT Business Plan,” which included a detailed business description, market analysis, cost-benefit and risk analysis, marketing strategies and goals, long-term development plans, projected income statement, projected balance sheet, projected revenue and expense statements with lists of projected accounts, and resumes of X-IT’s principals. The X-IT Case Study was taught and distributed to Harvard Business School students in April of 1998 and April of 1999. See Def.’s Mot. Ex. 14, Hart Dep. at 103-04. Students were under no obligation to maintain the confidentiality of the information presented in the X-IT Case Study and, once the X-IT Case Study was distributed, it became a matter of public record. See id. at 103-04. In April of 1999, the X-IT Case Study also became available for purchase and use by the general public. See id. at 18-19. In both the X-IT Case Study and XIT’s initial offering memorandum to investors, X-IT identified Kidde as one of the two large competitors that X-IT would face in the marketplace. See Def.’s Mot. Ex. 13, X-IT Case Study; Def.’s Mot. Ex. 16, IVE 75-92. X-IT’s offering memorandum also identified a number of risk factors associated with investing in X-IT, including the risk associated with the possibility of a competitor replicating the un-patented X-IT ladder. See id. at IVE 82. X-IT hoped to mitigate the risk of replication by obtaining “intellectual property protection,” such as patenting the X-IT ladder. See id. C. The Introduction of X-IT’s Ladder and X-IT’s Initial Contact with Kid-de X-IT introduced its ladder at the August 1998 National Hardware Show (hereinafter referred to as the “1998 Show”) in Chicago, Illinois. See Am. Compl. ¶ 17. The National Hardware Show, conducted in Chicago in August of each year, is one of the largest and most important trade shows throughout the world. See Pl.’s Opp. Ex. 46, Expert Report of Ken Cort, at 1. The show plays a major role in the sales process for hardware, building materials, and other related products. See id. X-IT’s principals visited Kidde’s booth at the 1998 Show and showed the X-IT ladder to representatives of Kidde. See Def.’s Ex. 3, Ive Dep. at 242-43; Def.’s Ex. 4, DiBelardino Dep. at 196-97. Prior to the 1998 Show, Kidde had not contemplated designing a web-type ladder. See Pl.’s Opp. Ex. 14, Torneo Dep. at 9. At the time, Kidde was selling its own chain-link escape ladder, which had been available in retail since 1996. See Def.’s Ex. 3, Ive Dep. at 243; Am. Compl. ¶ 8. X-IT was aware of Kidde’s chain-link ladder as DiBelardino had purchased it before X-IT developed its own ladder. See Def.’s Mot. Ex. 10, DiBelardino Dep. at 78. X-IT maintains that Kidde’s chain-link ladder was substantially larger and heavier than the X-IT ladder and that Kidde’s chain-link ladder was comprised of steel rungs that were “subject to tangling, ... difficult to deploy, and took up substantial storage space.” See Am. Compl. ¶ 7. The Kidde chain-link ladder weighed approximately 15 pounds, with a weight rating of approximately 350 pounds for its rungs. See Am. Compl. ¶ 8. Once collapsed, Kid-de’s chain-link ladder measured approximately 20 inches by 16-1/2 inches by 6 inches. See id. Moreover, the patent on Kidde’s chain-link ladder had long since expired. See Am. Compl. ¶ 8. D. X-IT’s Dealings with Kidde After the 1998 Show and X-IT’s Increasing Publicity After the 1998 Show, Kidde’s Carl To-rneo (“Torneo”) contacted X-IT and requested samples of the X-IT ladder. See Pl.’s Opp. Ex. 14, Torneo Dep. at 13. Ive responded to Tomeo’s request by giving Kidde the option of purchasing X-IT ladders over the Internet or executing a confidentiality agreement. See id. at 14-15. Kidde ultimately decided to purchase several of X-IT’s ladders over the Internet. See id. at 15,17-18. Kidde sent one of the X-IT ladders that it purchased over the Internet to its Chinese supplier, Funwick Development. Kidde instructed the Chinese factory to examine the design and quality of the XIT ladder, including an analysis of the cost of production of such a ladder. See id. at 19-20. Kidde also asked the Chinese factory to replicate X-IT’s ladder, see id. at 20-21, in what Kidde characterizes as “the first step in creating [Kidde’s] version of [a] more compact ladder.” Kidde received the Chinese factory’s copy of the XIT ladder sometime during March or April of 1999. See Def.’s Mot. Ex. 19, Apperson Dep. at 161. In the interim, X-IT’s ladder continued to receive a significant amount of publicity. In April of 1999, the X-IT ladder received the Bronze “IDEA” (Industrial Design Excellence Award) from the Industrial Designers Society of America, which is sponsored by Business Week magazine. See Am. Compl. ¶ 18. The May 1999 issue of Popular Mechanics also featured the X-IT ladder as “Great Stuff’ and a “Lifesaver.” See id. ¶ 19. In July of 1999, Inc. magazine published an article identifying X-IT as one of the top-ten “start-up” companies and included a photograph of the ladder. See id. The X-IT ladder received additional publicity through profiles that appeared on NBC’s “The Today Show” and CNBC’s “Power Lunch.” See id. X-IT also successfully arranged to place the XIT ladder in retail outlets including Home Depot’s Southwest region and catalogs such as SkyMall. See id. ¶ 20. X-IT sold over 10,000 of its ladders during its first full-year in production. See id. Despite all of this success, X-IT was also experiencing its share of the difficulty inherent in any start-up company, including a lack of operating cash and a shortage of established distribution outlets. In an e-mail message to investors, Ive stated that “[gjetting distribution takes a significant amount of time, which from a cash perspective, X-IT does not have a great deal of either .... The accounts we do have ... are either tests or will take time to ramp up.” Def.’s Ex. 2, IANSITI 496. In a different e-mail message written to Iansiti, Ive remarked that “[fjrankly, I am tired of the difficulties of an under capitalized company that has great products but without the financial leverage to do it properly.” Id. at IANSI-TI 498. E. Representatives of X-IT and Kidde Meet to Discuss a Potential Business Deal In the Spring of 1999, representatives of X-IT and Kidde arranged to meet and discuss a possible deal between the two companies, including either Kidde’s purchase of X-IT ladders or Kidde’s outright purchase of X-IT. See Pl.’s Opp. Ex. 14, Torneo Dep. at 43-47; Def.’s Mot. Ex. 17, KS 0001. Consequently, on June 1, 1999, X-IT’s Ive traveled to Kidde’s headquarters in Mebane, North Carolina to meet with Michael Apperson (“Apperson”), Kid-de’s President and Chief Executive Officer, as well as Torneo. See Def.’s Mot. Ex. 3, Ive Dep. at 315; PL’s Opp. Ex. 14, Torneo Dep. at 47. At the June 1, 1999 meeting, Apperson made it clear to Ive that Kidde was not interested in establishing a vendor-vendee relationship with X-IT. See Def.’s Opp. Ex. 3, Ive Dep. at 315-16. Instead, Kidde was interested in either acquiring X-IT or competing directly against X-IT with an alternative ladder, including the possibility that Kidde might purchase a German company that produced a ladder similar to the X-IT ladder. See id. at 318-21. Apper-son even showed Ive a compact German escape ladder in a box. See id. at 318. Ive understood Apperson to say that if negotiations between X-IT and Kidde did not lead to a deal, Kidde would “compete with [X-IT] aggressively with an alternative ladder.” Id. at 315-21, 325-27. Ive states, however, that neither Apperson nor Torneo disclosed to him that Kidde had another ladder similar to X-IT’s in development or that Kidde had replicated XIT’s ladder. See Pl.’s Opp. Ex. 47, Ive Aff. ¶ 7; Pl.’s Opp. Ex. 18, Ive Aff. ¶ 3. F. The Confidentiality Agreement X-IT and Kidde executed a Confidentiality Agreement on June 8, 1999. See Am. Comp. ¶ 28 & Ex. 4; Pl.’s Opp. Ex. 34. Kidde’s counsel ultimately drafted the Agreement, which was negotiated and reviewed by X-IT’s counsel. See Def.’s Mot. Ex. 23, Interrog. No. 15. Sam Soloman (“Soloman”), Kidde’s Chief Financial Officer, executed the Agreement on behalf of Kidde. See Am. Comp. ¶ 28 & Ex. 4; Pl.’s Opp. Ex. 34. Ive executed the Agreement on behalf of X-IT. See Pi’s Opp. Ex. 34. The Agreement, written in the form of a letter, acknowledges that X-IT and Kidde were in the process of “discussions concerning a potential transaction.” Pi’s Opp. Ex. 34. The Confidentiality Agreement contemplated that, during the course of these discussions, X-IT may furnish Kidde with “certain information concerning the business, financial condition, operations, assets and liabilities” of X-IT that may be “confidential” or “proprietary,” which the Agreement termed “Confidential Information.” Id. For purposes of the Agreement, the parties agreed that “Confidential Information” shall not include any information that (i) is in the public domain (other than through a breach of this agreement by [Kidde] or any of its representatives) at the time of its disclosure to or use by [Kidde], (ii) is in [Kidde’s] possession prior to its disclosure by [X-IT] or is independently developed by [Kidde] (provided that the source of such Confidential Information was not bound by a confidentiality agreement with [X-IT] or otherwise subject to any applicable restriction on the use of such information), (iii) is obtained by [Kidde] from a third party without any applicable restriction on use, including, without limitation, a confidentiality agreement with [X-IT] or (iv) is disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body. Id. Following this, the Agreement set forth certain restrictions that Kidde “agreed to accept as a condition to [X-IT’s] disclosure ... of Confidential Information.” Id. The Agreement states that Kidde agrees that (i) it and its representatives ... will use the Confidential Information only for the purposes of evaluating the potential transaction with [X-IT]; (ii) it will provide the Confidential Information only to its employees involved in the potential transaction with [X-IT] or outside advis-ors retained by [Kidde] in connection with such potential transaction and who agree to keep such information confidential, (iii) it will not disclose, in whole or in part, any Confidential Information (except to the extent [X-IT] gives its prior written consent or other than as specifically provided for herein); and (iv) it will promptly return to [X-IT], upon [X-IT’s] request, all copies of any Confidential Information provided to [Kidde]. Id. Based on this language, the “only legitimate use” that Kidde could make of any of X-IT’s disclosed confidential information was “to evaluate the potential transaction.” Pl.’s Mot. Ex. 16, Soloman Dep. at 43-46. Lastly, the Agreement states that it shall be construed in accordance with North Carolina state law. See id. G. Kidde’s Contact with a Buyer from Home Depot’s Southwest Region For the greater part of 1999, X-IT contends that it had “100% of the worldwide sales of emergency escape web ladders.” PL’s Opp. Ex. 18, Ive Aff. ¶ 1. In that same year, X-IT’s largest retail account was with Home Depot’s Southwest Region. X-IT’s business relationship with Home Depot is substantiated by Andy Slanina (“Slanina”), a Home Depot buyer, who stated in his deposition that he purchased X-IT’s ladder directly from X-IT for sale in Home Depot stores in Home Depot’s Southwest Region. See PL’s Opp. Ex. 38, Slanina Dep. at 16, 24. Sometime between June 8 and June 23 of 1999, Ive complained to Apperson that someone from Kidde had informed Slanina that X-IT and Kidde were in negotiations. See Def.’s Mot. Ex. 19, Apperson Dep. at 231-34. When approached by Ive, Apper-son denied leaking any such information. See Def.’s Mot. Ex. 19, Apperson Dep. at 233. The evidence before the Court illustrates the context behind Ive’s concerns. Slanina testified in his deposition that Mark Traylor (“Traylor”), an independent sales representative for Kidde, informed him that Kidde was coming out with a ladder similar to X-IT’s ladder and, as a result, that Slanina should hold off on ordering X-IT’s ladder for sale in Home Depot. See Def.’s Mot. Ex. 26, Slanina Dep. at 51-52. Consequently, Slanina, who was concerned about the possible financial effect this might have on Home Depot, inquired of both Ive and Francis Talty, X-IT’s independent sales representative, about a “rumor” that Kidde may purchase X-IT. See id.; Pl.’s Opp. Ex. 18, Ive Aff. ¶ 4. When Slanina talked to Ive, Slanina acknowledges that he “made some assumptions at that point” and that he “may have said that [he] heard a rumor” that Kidde was purchasing X-IT in order to “get the information out of them.” Def.’s Mot. Ex. 26, Slanina Dep. at 51-52. Slanina admits, however, that he was the source of the “rumor.” See id. Indeed, Slanina never heard a rumor that Kidde might be purchasing X-IT. See id. at 47. Instead, Slanina made an assumption, based on the information relayed to him from Traylor and based on Slanina’s previous conversations with Ive, that Kidde might acquire X-IT. See id. at 48-51. H. Representatives from X-IT and Kid-de Meet Again On June 29,1999, Ive, Dodge, Apperson, and Soloman met in a Chicago hotel suite, where X-IT’s representatives discussed XIT’s sales efforts with various retail accounts. See Def.’s Mot. Ex. 3, Ive Dep. at 352-73. X-IT shared with Kidde, in detail, the status of X-IT’s actual and potential customers. See Pl.’s Opp. Ex. 11, Ive Dep. at 83-84. Specifically, Ive informed Apperson at the second meeting about every single account who we were talking to, where we were in the process ■with them, what the buyers’ names were, what the sales reps who were presenting to them were called, and then' names and so on. In other words, a very detailed breakdown of what was happening with us in the marketplace. Def.’s Mot. Ex. 3, Ive Dep. at 354. Despite X-IT’s disclosures at this meeting, however, it is clear that X-IT knew — as reflected in the 1998 X-IT Case Study— that Kidde possessed established distribution outlets, including many of the same national retailers. See Def.’s Mot. Ex. 13, X-IT Case Study at 12. Moreover, X-IT knew in 1998 that Kidde, along with First Alert, “dominated” the market in the area of fire protection. See id. In the weeks following the June 29, 1999 meeting, X-IT supplied Kidde with certain additional documents and information that X-IT believed to be covered by the Confidentiality Agreement. See Pl.’s Opp. Ex. 26, Soloman Dep. at 39-45. These documents included X-IT’s sales and customer lists as well as a valuation model. See id. at 40-41. Kidde, however, maintains that some of the documents and information supplied by X-IT, including news articles, product brochures, and information from the published 1998 X-IT Case Study, already existed in the public domain. See Def.’s Mot. at 9. I. Kidde Develops Its Own Emergency Escape Ladder Simultaneous to Kidde’s discussions with X-IT regarding the possible acquisition of X-IT, Kidde maintains that it “continued” to explore the possibility of competing directly against the X-IT ladder by developing its own “improved emergency escape ladder.” Id. According to Henry Arnette’s (“Arnette”) Fire Ladder Diary, composed of Arnette’s notes, the ladders received by Kidde from the Chinese factory in March or April of 1999 were of the “same design” as X-IT’s emergency escape ladder. See Pl.’s Opp. Ex. 19; Pl.’s Opp. Ex. 21 at 1-2. As a result, on July 19, 1999, Kidde announced a factory-wide competition to redesign the hooking mechanism for securing the new Kidde escape ladder to the window. See Def.’s Mot. Ex. 31, Arnette Dep. at 134-35; Def.’s Ex. 17, KS0579. The announcement for the competition reads as follows. Kidde is preparing to market a new portable fire escape ladder and we want this to be the best product on the store shelf. We have selected a design for this new ladder, but the method of attaching the ladder to the windowsill needs improved [sic]. Safety and fitting in a small package are desirable features. This is where we need your ideas. To see what has to be accomplished, a demonstration will be held on Tuesday, July 20, at 1:30 PM .... Def.’s Ex. 17, KS0579. Kidde selected a new design for the window hooking mechanism from contest submissions. See Def.’s Ex. 31, Arnette Dep. at 134-35. Conversely, X-IT maintains that Kidde “began” to develop its own version of an emergency escape ladder no earlier than June 28, 1999. In support of this assertion, X-IT points to an e-mail message forwarded by Kidde’s Daryl Gilbert to Ar-nette and Pam Calderwood (“Calder-wood”), two Kidde employees responsible for the design of the new Kidde emergency escape ladder. This e-mail message, forwarded on June 28, 1999, informs Arnette and Calderwood, among others, that Kid-de’s Mark Schiefer very quickly needs a new product to promote at a trade show this August. ... Mark stressed the importance of speed of action on this. Henry [Ar-nette], this is your baby but I suggest that we all meet quickly to define the product (compare and contrast with ‘XIT’ product, develop new attributes ...) and then move quickly to document and test the product .... Def.’s Ex. 17, KS 0374. Further, according to X-IT, virtually all of Kidde’s development activities for its version of the XIT ladder were kept hidden from X-IT until after the August 1999 National Hardware Show (“1999 Show”), and throughout this period Kidde continued to explore the possibility of acquiring X-IT outright. See Pl.’s Opp. Ex. 18, Ive Aff. ¶ 3; PL’s Opp. Ex. 20, Interrogatory Responses, at 5. J. Kidde’s Initial Offer to Purchase XIT On July 19, 1999, Kidde offered to purchase X-IT for $600,000 plus a $2.00 per ladder royalty on future sales for an unspecified period of time. See Am. Compl. ¶ 36; Pl.’s Opp. Ex. 17, Ive Dep. at 385. Kidde’s offer had a present value of $4,417,494 using a twenty-year payout, a 14% discount rate, and growth rates of 30%. See Pl.’s Opp. Ex. 27, Richard B. Troxel’s Response to Rebuttal Report of Marc B. Sherman at ¶ 32. Nonetheless, this offer was well below X-IT’s valuation and expected revenue projections. See Def.’s Mot. Ex. 11, HART 000951. Ive conveyed his displeasure with Kidde’s offer to Kidde’s management, stating first that he considered the offer too low to even take to X-IT’s investors, see Def.’s Mot. Ex. 1, X-IT 1232, and then stating that he had taken the offer to investors, who deemed it insufficient, see Def.’s Mot. Ex. 17, KS 0032-KS 0033. Ive’also informed Kidde that X-IT was in discussion with another suitor, but would prefer to reach a deal with Kidde should Kidde desire to raise its offer. See id. at KS 0044. K. Kidde’s Analysis of X-IT’s Potential Intellectual Property Protection Kidde’s valuation of X-IT also depended, in part, on whether X-IT’s ladder had, or could obtain, intellectual property protection. See PL’s Opp. Ex. 33, Apperson Dep. at 131-32. As such, on or about July 20, 1999, Kidde indicated that it may raise its offer to acquire X-IT if Kidde found XIT’s intellectual property rights in the XIT ladder to be strong. See PL’s Opp. Ex. 17, Ive Dep. at 390-92; Pl.’s Opp. Ex. 16, Hart 000307. X-IT then made arrangements to share its U.S. patent application with Kidde’s outside patent attorney, Charles S. Oslakovic, Esq. (“Oslakovic”). See PL’s Opp. Ex. 18, Ive Aff. ¶ 9. In reliance on the June 8, 1999 Confidentiality Agreement, as well as “additional oral commitments” between the two parties and Oslakovic regarding the scope of Oslakovie’s review, X-IT shared its patent application with Oslakovic. See Am. Compl. ¶ 40. Specifically, the “oral commitments” concerned Kidde and Oslako-vic’s alleged promises to X-IT that Oslako-vic would not share the details of X-IT’s patent application with Kidde. See Pl.’s Opp. Ex. 18, Ive Aff. ¶ 9; Pl.’s Opp. Ex. 22, Oslakovic Dep. at 49-51. X-IT also points to a cover letter, written by Ive to Oslako-vic and attached to the copy of X-IT’s patent application sent to Oslakovic, which stated [a]s per our telephone conversation, we are attempting to ensure that the specific of the patent and the information contained within it are kept separate and not shared with Kidde Safety. Kid-de and X-IT Products have agreed to have you and your organization give feedback on the patent without giving Kidde specific wording or diagrams from the patent. If possible, we would like to get your thoughts on its strength and the potential it has to protect the product from infringement when it is awarded. Def.’s Mot. Ex. 17, KS0060. Prior to sharing its patent application with Kidde, X-IT asserts that it safeguarded this information in a reasonable manner to maintain its secrecy and confidentiality. See Pl.’s Mot. Ex. 2, DiBelardino Aff. ¶ 16. Although Oslakovic agreed to safeguard X-IT’s patent application pursuant to the terms of the June 8, 1999 Confidentiality Agreement between Kidde and X-IT, see PL’s Opp. Ex. 22, Oslakovic Dep. at 25-26, Oslakovic had never actually read the Agreement. See id. at 39. Nonetheless, as per the oral agreement, Oslakovic understood that he was not to share with Kidde the specific details contained within X-IT’s patent application. See id. at 50. The parties disagree as to whether X-IT had abandoned its patent application at the time it was provided to Oslakovic on August 10,1999. Oslakovic received a copy of X-IT’s patent application on August 10, 1999, five (5) days before the 1999 Show. Oslakovic analyzed the patent application prior to the 1999 Show and communicated “some of [his] conclusions” to Kidde prior to the 1999 Show. See Def.’s Mot. Ex. 32, Oslako-vic Dep. at 64. Specifically, Oslakovic spoke with Apperson on “at least two” occasions after receiving X-IT’s patent application and prior to the 1999 Show. See PL’s Opp. Ex. 22, Oslakovic Dep. at 74. Before the 1999 Show, Oslakovic advised Kidde that X-IT had patent claims that “dealt generally with overwrapping,” id. at 65, and that X-IT’s patent application made three independent claims that pertained to the X-IT ladder’s cover or over-wrap. See id. at 63, 83. Oslakovic also informed Apperson, prior to the 1999 Show, that the claims in X-IT’s patent application “were not strong” and that the patent application did not appear to add to the potential value of X-IT in any transaction. Id. at 71; Def.’s Mot. Ex. 32, Oslakovic Dep. at 104-05, 110-11, 139. Although Apperson acknowledges that Os-lakovic asked him, prior to the 1999 Show, what Kidde was “intending to do relative to overwapping,” he denies that he spoke with Oslakovic before the 1999 Show about X-IT’s “patent claims around the over-wrap.” PL’s Opp. Ex. 23, Apperson Dep. at 42-43. In fact, Apperson states that he “do[es] not think [Oslakovic] mentioned that X-IT’s primary goals were around overwrapping.” Id. at 43. Also prior to the 1999 Show, Oslakovic informed Apperson that he “needed to know about what Kidde was intending to use” for Kidde’s new prototype ladder, in order to compare the X-IT ladder to the new Kidde ladder. Pl.’s Opp. Ex. 22, Oslo-kovic Dep. at 65. Indeed, Apperson testified that Oslakovic asked him “somewhere between 10 and 20 questions” about Kid-de’s new ladder prior to the 1999 Show. See Def.’s Ex. 19, Apperson Dep. at 146. Oslakovic admits that he learned, in conversations with Apperson prior to the 1999 Show, that Kidde’s new ladder had an overwrap. See PL’s Opp. Ex. 22, Oslokovic Dep. at 68. At the 1999 Show, Oslakovic compared Kidde’s web-style ladder to XIT’s patent application. See Def.’s Mot. Ex. 32, Oslakovic Dep. at 72, 98-99. Such a comparison of the two products was, according to X-IT, not permissible and against X-IT’s wishes. See PL’s Opp. Ex. 48, Ive Aff. ¶ 5; PL’s Opp. Ex. 18, Ive Aff. ¶ 21. Oslakovic also admitted to using X-IT’s patent application, before the 1999 Show, to order some of the prior art contained within X-IT’s patent application. See PL’s Opp. Ex. 22, Oslakovic Dep. at 73. Before receiving X-IT’s patent application, Osla-kovic had not seen or reviewed any prior art relating to emergency fire escape ladders. See id. at 77. Ultimately, Oslakovic obtained all of the prior art identified in X-IT’s patent application. See id. at 73. Despite obtaining all of the prior art contained within X-IT’s patent application, Oslakovic denies using such information to later prepare Kidde’s patent application on its new web-style emergency escape ladder. See id. at 77. As expected, X-IT argues to the contrary. It is undisputed that an associate from Oslakovic’s law firm prepared the patent application on Kidde’s ladder. See id. at 77-78. Although the file that the associate used to prepare Kidde’s patent application contained the prior art obtained by reference to X-IT’s patent application, Oslako-vic states that “[w]hether [the associate] looked at it or not, I really don’t know.” Id. at 78. Oslakovic maintains that [w]e had some art from [X-IT’s patent application], some art from other sources. Some of it overlapped. There was art.... Whether he looked at the copy that I ordered as a result of getting it from X-IT or whether he looked at a copy that came from a searcher independently, I don’t know, but he looked at the art. Id. at 78-79. Further, Oslakovic provided X-IT’s ladder to his associate in order “to make sure that we considered that to be part of the prior art.” Id. L. August 1999 National Hardware Show To briefly recap, by mid-August 1999, X-IT and Kidde were still discussing the possibility of the possible acquisition of XIT by Kidde. Towards that end, X-IT sent Kidde’s patent attorney (Oslakovic) a copy of X-IT’s patent application on August 10, 1999 to enable Kidde to better evaluate the potential value of any intellectual property rights possessed by X-IT. Meanwhile, Kidde was developing its own version of the X-IT ladder for debut on August 15, 1999 at the National Hardware Show in Chicago (hereinafter the “1999 Show”), only five days after Oslakovic received X-IT’s patent application. These events — Kidde’s possible acquisition of XIT, and Kidde’s introduction of a competitive product — would come to a head at the 1999 Show. Again, the National Hardware Show, conducted in Chicago in August of each year, is one of the largest and most important trade shows throughout the world. See Pl.’s Opp. Ex. 46, Expert Report of Ken Cort, at 1. The show plays a major role in the sales process for hardware, building materials, and other related products. See id. The show exposes and generates great interest in thousands of products, with new items (such as XIT’s ladder at the 1998 Show and Kidde’s ladder at the 1999 Show) dominating interest. See id. Appointments are made between vendors, such as Kidde and XIT, and retailers, such as Home Depot, for showing and viewing products in addition to having buyers walk the aisles to look at the different products. See id. Naturally, in such a competitive environment, packaging and marketing draw attention to new products and generate retailer interest. The Court can only imagine X-IT’s surprise, therefore, when X-IT’s principals called on the Kidde booth on the first day of the 1999 Show and observed Kidde’s new “prototype” ladder, which, to X-IT, appeared to be nothing more than an exact copy of the X-IT ladder with the exception of a different and somewhat larger hooking mechanism. The Kidde web-style ladder on display at the 1999 Show even contained an “overwrap” similar to X-IT’s cover or overwrap. See Pl.’s Mot. Ex. 19, Oslakovic Dep. at 63, 91-92. Perhaps more shocking to X-IT’s principals was the packaging for Kidde’s new ladder that was also on display at Kidde’s booth. The undisputed evidence makes clear that Kidde displayed at least four identical boxes at the 1999 Show, and that each of these Kidde boxes contained elements of X-IT’s packaging that were scanned off of and directly copied from XIT’s packaging. Specifically, although the photograph on Kidde’s box at the 1999 Show contains a different hooking mechanism superimposed on the body of an X-IT ladder, the models depicted in the photograph on Kidde’s 1999 Show box as well as the set are the same as those depicted on X-IT’s box. Compare Def.’s Mot. Ex. 17, KS 0242 (Kidde’s 1999 Show box packaging layout), with Pl.’s Opp. Ex. 50, DiBe-lardino Aff. Ex. G. (X-IT’s packaging). In addition, Kidde’s box at the 1999 Show also contained diagrams that were scanned off of X-IT’s packaging, including the diagram of a house that shows the proper placement of emergency escape ladders and the diagram of the ladder with the slogan “RUNGS TESTED TO 1000 lbs” superimposed thereon. See id. According to Kidde, the packages were created by printing a computerized version of a packaging layout and using a spray adhesive to attach this cover to the cardboard boxes. See Def.’s Mot. Ex. 35, Pendergast Dep. at 55-57. Todd Pender-gast (“Pendergast”), one of Kidde’s creative designers, admitted that he scanned the X-IT artwork for' use at the 1999 Show. At his deposition, Pendergast stated that the photo on the Kidde box, sell sheets, and PowerPoint slide at the 1999 show “was the photo that I created by scanning the X-IT box at the time and then photomanipulating our current hook technology onto this prototype photo.” Pl.’s Mot. Ex. 5, Pendergast Dep. at 59. Pendergast stated that his actions with respect to the scanning and copying of XIT’s cover art were directed by Mark Schiefer (“Schiefer”), Kidde’s vice-president for marketing. See id. at 20, 21, & 31. When Schiefer was asked during his deposition whether “the [Kidde] art work at the 1999 Hardware Show had a scanned and modified X-IT photograph on it,” Shiefer responded “[y]es.” Pl.’s Mot. Ex. 6, Schiefer Dep. at 61. Finally, in X-IT’s Supplemental Requests for Admission, Kidde admitted that Kidde “scanned the photograph of a boy and a woman which was on the box for the X-IT ladder.” See Pl.’s Mot. Ex. 12, Kidde’s Supplemental Resps. to X-IT’s Supplemental Reqs. for Admis., at 5 (Admis.No. 8). The woman and child appearing in the X-IT photograph are DiBelardino’s ex-sister-in-law and nephew. See Am. Compl. ¶ 13, 60. It is undisputed that Kidde did not have the permission of and paid no royalties to these models for the use of their images. See Pl.’s Opp. Ex. 33, Apperson Dep. at 66-67. In addition to the four packages that were on display at the 1999 Show, it is undisputed that Kidde also employed the scanned photograph from X-IT’s box on twenty sell-sheets for the new Kidde ladder at the 1999 Show, although there is no evidence that any of the sell sheets were actually distributed. See Def.’s Mot. Ex. 10, DiBelardino Dep. at 62-63. Kidde also included the photograph from X-IT’s package in a PowerPoint slide presentation at a private meeting of its manufacturers’ representatives held in conjunction with the 1999 Show on August 14, 1999. See Def.’s Mot. Ex. 17, KS 0757-0775. In total, therefore, according to X-IT, Kidde had at least two “prototype” ladders at the 1999 Show, at least four “prototype” packages containing X-IT-scanned images at the 1999 Show, at least twenty sell-sheets containing X-IT-scanned images at the Show, and presented a PowerPoint presentation to between fifty and seventy Kidde employees and independent, sales representatives at'the 1999 Show that contained images scanned from X-IT’s packaging. See Pl.’s Opp. Ex. 31, Apperson Dep. at 9-14; Pl.’s Opp. Ex. 23, Apperson Dep. at 31; Pl.’s Opp. Ex. 40, Schiefer Dep. at 134-36; Pl.’s Opp. Ex. 5, Hoover Dep. at 23. In addition to the scanned artwork, Kid-de’s packaging at the 1999 Show also made the following claims regarding the new Kidde ladder: (1) that the new Kidde ladder was the “strongest”; (2) that it was “tested to 1,000 pounds”; (3) that the new ladder was “fire resistant”; and (4) that the new ladder was “safe.” See Def.’s Mot. Ex. 17, KS 0242. X-IT argues in the current litigation, however, that, in fact, the new Kidde ladder on display at the 1999 Show was not the “strongest,” was not “tested to 1,000 lbs,”- was not “fire resistant,” and was not “safe,” and cites to evidence in the record that supports these assertions. See Pl.’s Opp. Ex. 43, Kidde Am. Resp. to X-IT’s Second Supplemental Req. for Admis. Nos. 20, 24; Pl.’s Opp. Ex. 5, Hoover Dep. at 42-43; Pl.’s Opp. Ex. 33, Apperson Dep. at 77; Pl.’s Opp. Ex. 23, Apperson Dep. at 78-83. It is undisputed, however, that Kidde actually solicited sales for its new ladder at the 1999 Show, and employed the “prototype” ladder and “prototype” packages in that regard. See Pl.’s Opp. Ex. 38, Slanina Dep. at 36-38. On August 16, 1999, representatives of Kidde and X-IT met at the 1999 Show to discuss X-IT’s complaints about Kidde’s display, including X-IT’s claim that the ladder at the Kidde display was in fact an X-IT ladder, and X-IT’s complaint concerning Kidde’s copying of X-IT’s packaging. See Def.’s Mot. Ex. 42, Ive Aff. ¶¶ 13-21. The parties do agree that, after Ive complained to Kidde representatives about the use of the photograph, Kidde representatives used a black, felt-tip marker to “black-out” the faces on Kidde’s packages but otherwise continued to sell the new Kidde ladder. See Am. Compl. ¶ 70. The parties also discussed Kidde’s possible violation of X-IT’s intellectual property rights were X-IT to be successful in ultimately obtaining a patent. In response to Ive’s statements that Kidde’s ladder would infringe on X-IT’s patent, Oslakovic purportedly “introduced the concept of claim groups and tried to see that it was okay [with X-IT and Ive] to discuss the subject matter of [X-IT’s] patent application at that level.” Def.’s Mot. Ex. 32, Oslakovic Dep. at 98. According to Kidde, Oslakovic “only spoke to the items that [Ive] brought out” regarding the X-IT patent, and did not speak of items that were not first brought out by Ive. Def.’s Mot. Ex. 19, Apperson Dep. at 139. At the meeting, Kidde’s Apperson also expressed his belief that the Kidde prototype did not violate X-IT’s intellectual property rights because X-IT’s patent was still pending. See id. at 130. According to X-IT, however, it was obvious from Apperson’s comments that Apperson knew details about X-IT’s patent application that could only have been shared with him by Oslakovic. See PL’s Opp. Ex. 11, Ive Dep. at 83-90; Pl.’s Opp. Ex. 47, Ive Aff. ¶ 15; PL’s Ex. 18, Ive Aff. ¶ 9. M. Relevant Facts Post-1999 Show As this protracted litigation makes clear, any talks of X-IT’s possible acquisition by Kidde quickly evaporated in the wake of the 1999 Show. Consequently, on August 19, 1999, Ive requested that Oslakovic return X-IT’s patent application along with a statement that no copies of the patent were made or retained. See Def.’s Mot. Ex. 17, KS 84. Oslakovic complied with this request on August 20, 1999. See id. at 297. ' It is undisputed that Kidde destroyed its boxes and ladders on display at the 1999 Show shortly after the 1999 Show. See PL’s Opp. Ex. 5, Hoover Dep. at 32-33; PL’s Opp. Ex. 37, Arnette Dep. at 269-71. Moreover, Kidde apparently did nothing to develop its own photographs until after XIT complained of Kidde’s unauthorized use of X-IT’s photographs at the 1999 Show. See, e.g., PL’s Opp. Ex. 41, Pendergrast Dep. at 98-99. Kidde thereafter contracted with Axiom, Inc. to provide a new photograph of a woman and boy exiting from a window to replace the photograph scanned from X-IT’s box. See PL’s Mot. Ex. 5., Pendergast Dep. at 98. N. Kidde’s Commercially Available Ladder and Package as Compared to X-IT’s Kidde began accepting orders on the new Kidde ladder on October 20, 1999, when Kidde’s marketing bulletin first advertised the product. See Def.’s Mot. Ex. 17, KS 0179-180. The ladders that Kidde began delivering in late 1999 were made of polypropylene webbing and allegedly failed Kidde’s internal testing for flame resistance, conducted according to National Fire Protection Association (“NFPA”) Standard No. 701. See PL’s Opp. Ex. 33, Apperson Dep. at 55-59. The Kidde ladders also contained a 1-inch wide strap (later increased to a 2-inch wide strap) in place of the overwrap on X-IT’s ladders. See PL’s Mot. Ex. 24, Apperson Dep. at 10-25; PL’s Mot. Ex. 23, Hoover Dep. at 45. The production-run Kidde ladder also differs from the X-IT ladder, inter alia, in that the hooking mechanism on the Kidde ladder is substantially larger than the hooking mechanism on the X-IT ladder. Kidde’s commercially available packaging is also somewhat similar to X-IT’s. In support of X-IT’s trade dress infringement claim against Kidde, X-IT first points to the overall size of the X-IT package as compared to the Kidde package: the X-IT box measures 14.5" tall by 7.5" wide by 5.5" deep, while the Kidde box is approximately 16" tall by 8.25" wide by 6" deep. See PL’s Mot. Ex. 2, DiBelardino Aff. Exs. F & G. Both boxes feature a woman standing at the bottom of a ladder while a young boy is exiting the house from a window above, with the models in similar poses, right down to the placement of the women’s hands. See id. In fact, the photographer who took the picture that appears on Kidde’s current box, Chuck Carlton (“Carlton”) of Axiom, Inc., stated in his deposition that the X-IT photograph and the Kidde photograph are similar enough that, had he seen the X-IT photograph before taking the Kidde photograph, he would have altered his photograph. See PL’s Rep. Ex. 4, Axiom, Inc. Dep. at 70-79. In Carlton’s own words, the similarity in the two photographs would have caused him “trepidation.” See id. at 78. Both boxes also share numerous functional elements or components in similar places. For instance, the front and back of both boxes features a “bullet” list of each ladder’s key features, and both boxes carry the identical phrases “Easy to Use” and “Tangle Free” within those bullet lists. See PL’s Mot. Ex. 2, DiBelardino Aff. Exs. F & G. Both boxes identify the ladder inside as a “13 foot model for 2 story home.” Both boxes include the following statement on the side panel in the same location: “Eighty percent of all deaths from fire occur in the home. Provide your family with a safe way out with” [X-IT] or [the Kidde Emergency Escape Ladder], Id. Immediately under this statement both boxes contain the following statement: “[The X-IT/Kidde ladder] has these superior features:” Id. This statement is followed on both boxes by an expanded “bullet” list of features, presented in the same manner. See id. The bullet lists on the sides of both boxes include the following features: “EASY TO USE,” “TANGLE FREE,” and “ANTI-SLIP RUNGS.” The X-IT box states that the X-IT ladder’s “Rungs [are] tested to 1000 lbs.” Id. The Kidde box states that the Kidde “Ladder [is] tested to 1000 lbs.” Id. Both boxes depict a schematic cut away of a house in the bottom portion of the side panel. See id. Each of these house diagrams identify, with a rectangular box, the proper location for the escape ladder. See id. Immediately under the house on both boxes is the following statement: “[Keep an X-IT] or [Place a Kidde Escape] Ladder in every upper floor room.” Id. The presentation on the remaining side panel of the Kidde box also bears some resemblance to the X-IT box. See id. Both side panels are labeled in large, all capital letters with “[X-IT or KIDDE] EMERGENCY ESCAPE LADDER.” Id. The first paragraphs of text carry the following identical language: “Equipped with ... your new [X-IT/Kidde] Emergency Escape Ladder is always tangle free [and/. It is] ready-to-use in an emergency, opening in a matter of seconds, when every second counts!” Id. The remainder of the side panel is composed of a pictorial display on how to deploy the ladder. See id. Although X-IT concedes that the verbiage differs between the two pictorial displays, the presentations are similar. See id. Both feature three diagrams, labeled “1,” “2,” and “3.” Id. Each label consists of a white number on a red background. See id. The first diagram on each box depicts the ladder, while the second diagram on each box depicts hooking the ladder on the window, and the third diagram on each box depicts the ladder being deployed and uses the phrase “your ladder will extend under its own weight.” Id. The packages are not entirely alike, however, and Kidde has pointed to several differences between the two packages. First, the background for Kidde’s cover art is black with red lettering, while the background for X-IT’s cover art is blue with orange-yellow lettering. See id. The top portion of the front and rear of each box is dominated by the companies’ respective trade names, X-IT and Kidde Safety. See id. Kidde also contends that other alleged similarities between the boxes — primarily the photograph of a woman and child using the product to escape from the house and artwork demonstrating the use of the product — are found on many other packages in the market, including Kidde’s chain-link ladder that predated the X-IT box by years. See id. In any event, it is undisputed that Kidde has sold over 100,000 units of its web-style ladder since November 1999. See Pl.’s Mot. Ex. 18, Apperson Dep. at 95; Pl.’s Mot. Ex. 16, Solomon Dep. at 98. II. Procedural Background Against that factual backdrop, X-IT initiated this action on July 10, 2000 by filing an eight-count Verified Complaint against Kidde. Litigation has been fast and furious since that date. The parties apparently have been able to agree among themselves on very little, thus necessitating the involvement of the Court on every facet of this case, particularly with respect to numerous discovery disputes. Although this matter was originally set for a jury trial on February 27, 2001, that date has twice been continued, and the matter is now set for a jury trial on July 23, 2001. The entire procedural history of this case is far too elongated to fully recite here; nonetheless, the Court will briefly recite a few of the more important moments in the history of this litigation so as to provide the reader with some context for the instant motions. X-IT’s Verified Complaint raises causes of action for (1) copyright infringement (Count I); (2) false designations under the Lanham Act (Count II); (3) false advertisement under the Lanham Act (Count III); (4) breach of contract (Count IV); (5) misappropriation of trade secrets (Count V); (6) unfair competition (Count VI); (7) tortious interference (Count VII); and (8) unjust enrichment and constructive trust (Count VIII). In X-IT’s Prayer for Judgment, X-IT seeks (1) $7,500,000 in compensatory damages; (2) injunctive relief against Kidde; (3) Kidde’s profits; (4) punitive damages; (5) attorneys’ fees; and (6) X-IT’s costs in bringing this action. Kidde answered X-IT’s Complaint on August 16, 2000. After receiving permission from the Court, X-IT filed an Amended Complaint on March 27, 2001, raising additional claims for, inter alia, breach of contract and unfair competition. On March 28, 2001 — while the trial of this matter was still set for May 14, 2001— Kidde moved the Court for leave to file a summary judgment motion with a supporting memorandum in excess of the Court’s 30-page limit, as well as leave to schedule oral argument on this motion after the final pretrial conference. X-IT opposed this motion. On April 10, 2001, prior to receiving permission from the Court, Kid-de filed the instant motion entitled “Motion to Dismiss, for Judgment on the Pleadings, and for Summary Judgment.” Kidde’s memorandum in support of this motion totals 75 pages, inclusive of introductory materials. At a hearing in front of Magistrate Judge Stillman on April 12, 2001, the Court (1) granted Kidde’s motion to file its summary judgment motion and supporting memorandum; (2) allowed XIT to file 67 pages of memorandum in opposition to Kidde’s motion; (3) allowed X-IT to file a Motion for Summary Judgment, with supporting memorandum not to exceed 45 pages; and (4) continued the trial in this matter from the then-scheduled date (May 14, 2001) to the current date (July 23, 2001). X-IT thereafter responded to Kidde’s motion, and also filed its own Motion for Partial Summary Judgment on April 26, 2001. The Court notes that the briefing on these cross-motions has been mountainous. All told, over 240 pages of memoranda have been filed with the Court, along with roughly 2,000 pages of exhibits. Also, in addition to X-IT’s Motion for Partial Summary Judgment, on May 10, 2001 X-IT filed a'Rule 56(f) Motion, asserting that additional discovery may be necessary to raise genuine issues of material fact to defeat Kidde’s Motion for Summary Judgment. Within the context of the cross-motions for summary judgment, the parties have also engaged in warfare over who comes before the Court with the cleanest hands. The Fort Sumter for this dispute was Kid-de’s Brief in Opposition to X-IT’s Motion for Partial Summary Judgment, filed on May 10, 2001, which Kidde concluded with a section entitled “X-IT’s Unclean Hands Bar the Entry of Summary Judgment in X-IT’s Favor and Warrant the Entry of Judgment in Kidde Safety’s Favor on All Claims.” X-IT responded by filing, on May 17, 2001, a Motion to Strike Kidde’s Unclean Hands Evidence and Argument, which of course necessitated a memorandum in opposition from Kidde (filed on May 29, 2001), as well as a reply memorandum from X-IT (filed on June 1, 2001). The Court heard oral argument on these various motions on May 23, 2001, and at that time took the entire matter under advisement. Still, even after the conclusion of oral argument and the submission of this matter for disposition, the ebb and flow of the tide continued to carry numerous, additional filings related to these cross-motions to the courthouse door. For example, on June 14, 2001, Kidde filed a Motion with Memorandum in Support for Leave to File Correction to Summary Judgment Record. Both parties also attempted to file “Corrections” to their previously submitted memoranda. By Order entered June 20, 2001, the Court denied Kidde’s Motion for Leave to File Correction to Summary Judgment Record, and directed the Clerk to return to counsel an additional document filed by Kidde entitled “Correction to Kidde Safety’s Brief in Opposition to X-IT’s Motion for Partial Summary Judgment.” As this brief procedural discussion makes clear, this matter has doubtlessly been fully briefed, and the memoranda were further supplemented through oral argument. Consequently, the matter is fully ripe for disposition. III. Facts Admitted for Purposes of Summary Judgment and Trial Local Rule of Practice 56(B) for the Eastern District of Virginia addresses certain obligations of both a party moving for summary judgment and a party opposing a motion for summary judgment. Specifically, Local Rule of Practice 56(B) states that Each brief in support of a motion for summary judgment shall include a specifically captioned section listing all material facts as to which the moving party contends there is no genuine issue and citing parts of the record relied on to support the listed facts as alleged to be undisputed. A brief in response to such a motion shall include a specifically captioned section listing all material facts as to which it is contended that there exists a genuine issue necessary to be litigated and citing the parts of the record relied on to support the facts alleged to be in dispute. In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion. (emphasis added). Additionally, Federal Rule of Civil Procedure 56(d) states, in pertinent part, that [i]f on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy .... Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (emphasis added). Based on the above-cited rules, the Court has examined the parties’ briefs and finds it necessary to set forth the material facts that exist without substantial controversy as well as those facts that the parties have not contested. As such, the following facts are deemed admitted for purposes of summary judgment and trial. 1. Kidde scanned and used the art on the X-IT ladder’s box, without X-IT’s permission, for Kidde’s own “prototype web-based ladder” at the 1999 National Hardware Show. See Pl.’s Mot. Ex. 1, Kidde’s Resps. to X-IT’s First Reqs. for Admis., at 11 (Ad-mis.No. 44); Pl.’s Mot. Ex. 5, Pender-gast Dep. at 30-32, 34, 36-37, 40-45, 47. 2. After the 1999 Show, Kidde contracted with Axiom, Inc. to provide a new photograph of a woman and boy exiting from a window, which was to replace the photograph scanned from the X-IT ladder’s box. See Pl.’s Mot. Ex. 5, Pendergast Dep. at 98. 3. Kidde first sought non-X-IT artwork for its box after the 1999 Show. See id. at 99. 4. The Confidentiality Agreement, Pl.’s Mot. Ex. 14, is a true and accurate copy of the original Confidentiality Agreement. 5. Representatives of X-IT and Kidde executed the Confidentiality Agreement on June 8,1999. See id. 6. The Confidentiality Agreement is valid and binding on both parties. See PL’s Mot. Ex. 15, Kidde’s Am. Resp. to Supplemental Reqs. for Ad-mis. No. 13, at 1 (Admis.No. 13). 7. As per the Confidentiality Agreement, Kidde agreed that it would use X-IT’s confidential information “only for the purposes of evaluating the potential transaction with” X-IT. See ■ Pl.’s Mot. Ex. 1, Kidde’s Resps. to XIT’s First Reqs. for Admis., at 2 (Ad-mis.No. 12); Pl.’s Mot. Ex. 16, Solo-man Dep. at 42-46. 8. As per the Confidentiality Agreement, Kidde could not use X-IT’s confidential information to introduce a competitive product. See PL’s Mot. Ex. 16, Soloman Dep. at 45-46. 9. X-IT sent its U.S. patent application to Kidde’s outside patent attorney, Oslakovic, on or about August 10, 1999. See Pl.’s Mot. Ex. 19, Oslakovic Dep. at 165-68; Def.’s Mot. Ex. 17, KS 0060. 10. In between August 10, 1999 and August 15, 1999, Oslakovic analyzed the X-IT patent application and discovered that two of three sets of claims for patent protection and, in fact, three of the five actual claims in the patent application, pertained to XIT’s overwrap. See Pl.’s Mot. Ex. 19, Oslakovic Dep. at 60-61,171. 11. Oslakovic advised Kidde of the fact that X-IT had claims regarding the overwrap prior to the 1999 Show. See id. at 64-65. 12. Prior to meeting with X-IT representatives at the 1999 Show, Oslakovic rendered a conclusory opinion to Kid-de regarding whether the X-IT patent application covered Kidde’s “prototype web-based ladder.” See PL’s Mot. Ex. 22, Kidde’s Resps. to X-IT’s Supplemental Reqs. for Admis., at 1 (Admis.No. 1). 13. Kidde’s ladder had an overwrap on it at the 1999 Show. See PL’s Mot. Ex. 19, Oslakovic Dep. at 63, 91; PL’s Mot. Ex. 23, Hoover Dep. at 45. 14. After the 1999 Show, Kidde removed the overwrap that was on its ladder and replaced it with a 1" wide strap (later increased to 2" wide). See PL’s Mot. Ex 24, Apperson Dep. at 22-25; PL’s Mot. Ex. 23, Hoover Dep. at 45. 15. The strap on Kidde’s current ladder is not similar to the overwrap that Kidde had on its ladder at the 1999 Show. See PL’s Mot. Ex. 23, Hoover Dep. at 45; PL’s Mot. Ex. 19, Oslako-vic Dep. at 177. 16. Kidde used X-IT’s- patent application to order prior art. See PL’s Mot. Ex. 19, Oslakovic Dep. at 73-80. 17. Kidde will not sell a product if it believes it is infringing another company’s patent. See PL’s Mot. Ex. 10, Apperson Dep. at 108-09. 18. If Kidde’s ladder was infringing XIT’s patent pending, Kidde would “remedy” the problem. See PL’s Mot. Ex. 13, Harper Dep. at 175-76. 19. Kidde has sold over 100,000 -units of its web-style ladder since November 1999. See PL’s Mot. Ex. 18, Ap-person Dep., at 95; PL’s Mot. Ex. 16, Solomon Dep., at 98. IV. X-IT’s Motion to Strike Kidde’s Unclean Hands Evidence and Argument In its Brief in Opposition to Plaintiffs Motion for Partial Summary Judgment, Kidde argues that X-IT’s unclean hands should bar X-IT from any equitable relief in this case. Specifically, Kidde argues that X-IT has (1) made material misrepresentations during the course of pre-litigation business negotiations with Kidde and (2) engaged in certain litigation misconduct. In response, X-IT filed a Motion to Strike Kidde’s Unclean Hands Evidence and Argument, in which X-IT cont