Full opinion text
OPINION MURRAY M. SCHWARTZ, Chief Judge. There are three related cases now before the Court: Coca-Cola Bottling Company of Elizabethtown, Inc. v. The Coca-Cola Company, No. 81-48 MMS; Coca-Cola Bottling Company of Shreveport, Inc. v. The Coca-Cola Company, No. 83-95 MMS; and Alexandria Coca-Cola Bottling Company, Ltd. v. The Coca-Cola Company, No. 83-120. This opinion disposes of motions filed in the latter two cases (the “diet Coke cases”); an opinion released concurrently with this one (“Coke VI”) addresses motions filed in the first case (the “Coke case,” or “Elizabethtown”). Specifically, this opinion treats the partial summary judgment motions filed by the Coca-Cola Company (the “Company”) and the cross-motions for partial summary judgment filed by the plaintiffs. The Elizabethtown litigation began in 1981 and stemmed from the Company’s decision to begin substituting high-fructose corn syrup (“HFCS” or “HFCS-55”) for granulated sugar in the syrup for Coca-Cola sold by the Company to the plaintiff bottlers. The Coke case centers primarily around the type of syrup to which the bottlers are entitled (sucrose-sweetened or HFCS-sweetened) and the price of that syrup. In 1983, when the Company introduced its new diet product, diet Coke, many Coca-Cola bottlers believed that the Company was obligated to supply the syrup for the new product under the terms of the existing contracts. The Company disagreed and these suits ensued. The plaintiffs in 83-95 (the “unamended bottlers”) are bottlers whose contracts derive from agreements entered as consent decrees (the “Consent Decrees”) primarily between the ancestors of the present bottlers (the “parent bottlers”) and the Company in 1921. The plaintiffs in 83-120 (the “amended bottlers”) are bottlers who have amended their contracts with the Company in response to a Company proposal and negotiations begun in 1978 (the “1978 amendment”). The differences in status of the unamended and amended bottlers will be discussed more fully below. Trial of the three cases is scheduled to begin in late September of this year and continue for five months. This Court has jurisdiction over the diet Coke cases pursuant to 28 U.S.C. §§ 1332, 1338, 2201 (1982 & Supp. IV 1986); and 15 U.S.C. §§ 15, 26, 1121 (1982). I. FACTUAL BACKGROUND Many of those familiar with this litigation know the following litany by heart. For the sake of those less steeped in the history of the parties, the Court will repeat it yet again. A. The Growth of the Bottling System In an amusing sketch of the history of Coca-Cola, Pat Watters notes that by the late 1970’s, the world’s population consumed approximately 12.5 million gallons of Coca-Cola drinks daily. P. Watters, Coca-Cola: An Illustrated History 3 (1978). There is every reason to believe that this figure is considerably greater today. The nativity of this phenomenally successful soft drink is due to the efforts of an Atlanta pharmacist, John Styth Pem-berton, who developed the original formula for the drink in 1886. Shortly afterward, Asa G. Candler, also an Atlanta pharmacist and owner of a wholesale drug company, purchased the trademark rights and the formula from Pemberton. Candler formed The Coca-Cola Company to market the product as a soda fountain beverage. In 1899, two Chattanooga lawyers, B.F. Thomas and J.B. Whitehead, purchased the rights to sell Coca-Cola in “bottles or other receptacles.” Docket Item (“Dkt.”) 1, exh. B-l at 39 (83-120). Their agreement with the Company provided that the Company would supply the syrup at a fixed price and that Whitehead and Thomas would in turn produce sufficient quantities of the drink to meet “the demand in all territory embraced in this agreement.” Id. The 1899 contract obligated Whitehead and Thomas to “establish in the city of Atlanta, as soon as the necessary machinery and buildings can be obtained, a bottling plant for the purpose of bottling a mixture of Coca-Cola syrup preparation with carbonic acid and water.” Coke 1920, 269 F. at 800 (quoting 1899 contract). Initially, two plants were built and operated by Whitehead and Thomas. Demand soon outpaced the capacity of the two plants, however, and Whitehead and Thomas determined that new plants were necessary to fulfill their contractual duties. Id. at 801. At about the same time, there was a falling out between Whitehead and Thomas as to the best method of developing the bottling business. In particular, they disagreed over the length of the contracts to be granted to “first-line,” or “actual” bottlers — local plant owners with whom Whitehead and Thomas would contract in fulfillment of the obligation imposed by the 1899 contract to supply sufficient quantities of the drink to meet demand. Whitehead favored perpetual contracts, whereas Thomas viewed term contracts as wiser. Unable to compromise, the two split the bottling business. The company they initially had formed, Coca-Cola Bottling Company, remained under the control of Thomas (the “Thomas Co.”), who retained bottling rights in approximately fifteen states while conveying rights in the remainder of the states to Whitehead. Whitehead and a new partner, J.T. Lupton, named their bottling company “The Coca-Cola Bottling Company” (the “Whitehead-Lupton Co.”). The Company, Thomas Co., and Whitehead-Lupton Co. joined in amending the 1899 agreement to reflect the division. With the consent of the Company, the two bottling companies (the “parent bottlers”) proceeded to sub-contract with individual first-line bottlers for actual bottling. The first-line bottlers invested in bottling plants and equipment, and bought their syrup from the parent bottler with rights to bottle Coca-Cola in their locality. By 1920, the actual bottlers’ capital investment exceeded that of the Company by a factor of five. For the first years of the contracts, the Company sold the bottlers the same syrup sold to soda fountains. Because there was some disparity in taste between the bottled and the fountain drink, some saccharin was added to the bottled product. After the passage of the Pure Food and Drug Act in 1906, outlawing the use of saccharin in food, the Company formulated a separate bottle syrup. The new syrup contained more granulated sugar to maintain the sweetness, and accordingly was more expensive. The parent bottlers allowed the Company to increase the syrup price to reflect the higher cost of the sweetener. World War I disrupted (among other things) the sugar market, bringing price controls and rationing. Unable to purchase its requirements of sugar, the Company experimented with sugar substitutes, including corn syrup, in an effort to compensate for the limited amount of sugar available. This experimentation may have been prompted by work done by the United States Department of Agriculture, which released a report titled “Formulas for Sugar-Saving Sirups [sic].” See Dkt. 60 (81-48) at 20. The sugar substitutes did not produce syrup of satisfactory quality. After the war, the situation did not improve. Sugar prices soared due to shortages, and the Company sought new agreements from the bottlers tying syrup prices to its manufacturing costs. While negotiating this proposal, the bottlers demanded specific information from the Company about its costs. The Company refused to disclose the information, insisting that the bottlers’ verification concerns be allayed by “the integrity and good faith of The Coca-Cola Company.” PX 1, at 1580. Unwilling to take the Company’s representations on faith, the bottlers rejected the flexible pricing proposal. The Company then announced that it viewed the contracts with the parent bottlers as terminable at will, to which the bottlers responded by demanding that the Company acknowledge the perpetual nature of the contracts. The Company informed the bottlers that their contracts would be terminated as of May 1, 1920. The parent bottlers filed separate suits seeking a determination that their contracts were perpetual. Pending a final determination of the litigations, the parties agreed to a court order temporarily governing their relations. Syrup price per gallon was set at $1.72 for five months, after which the price would be adjusted up or down from that figure, depending on the Company’s costs. Unknown to the bottlers, and contrary to the representations made at the outset of the litigation in an affidavit by Charles H. Candler, then Chairman of the Board of the Company, the Company had entered into long-term sugar contracts just when sugar prices peaked. Thus, while the price of sugar dropped steeply from a June, 1920, peak, and while the prices of competing beverages fell, the price of Coca-Cola remained high. Coca-Cola sales volume decreased dramatically, by 53% in September 1920, and by 50% in October, 1920. Expecting relief on November 1, when the $1.72 price became adjustable, the bottlers instead were met with price increases, as the Company attempted to recoup its above-market sugar costs. The Company announced further increases in December and January. Announcement of a February price increase prompted several of the bottlers to seek supplemental relief for fraud and the “appointment of a special master to determine the syrup cost under the terms of the Order.” Coke III, 654 F.Supp. at 1395. On November 8, 1920, Judge Morris issued a preliminary injunction essentially adopting the bottlers’ contentions. Ultimately, after argument before the Third Circuit Court of Appeals, but before that court’s decision, the parties agreed to contract amendments settling the suits. These amendments, or settlement agreements, were incorporated into consent decrees. In large part, the Consent Decrees and the corresponding amendments to the first-line bottlers’ contracts still govern the relations between the Company and the “unamended bottlers.” See Coca-Cola Bottling Company of Elizabethtown, Inc. v. The Coca-Cola Company, 696 F.Supp. 57, at page 60 (D.Del.1988) {“Coke VI”). The specific provisions of the Consent Decrees are set out in some detail in Coke VI, the companion opinion to this one. See Coke VI, at pages 64-67. Briefly, the decrees recognized the mutual benefits of vigorously promoting the sale of Coca-Cola, acknowledged the perpetual nature of the contracts between the parents and the Company, devised a quality-control mechanism, and created a pricing scheme tied to the market price of sugar. The provisions most pertinent to the Diet Coke cases are paragraphs 8, 9, and 10. These paragraphs describe and apportion rights and duties concerning the trademark, and require that the syrup provided by the Company be “high grade standard Bottlers Coca-Cola syrup,” containing “not less than five and thirty-two one hundredths (5.32) pounds of sugar to each gallon.” See Dkt. 1 (83-95), exh. S (Consent Decrees). They are set forth more fully below. The Consent Decrees contemplated amendment of the contracts between the parent bottlers and the actual bottlers to conform to the agreements reached between the parents and the Company. Indeed, the Whitehead-Lupton case expressly conditioned the settlement agreements on the consent of the actual bottlers. The actual bottlers agreed to the conforming amendments, and received assignments of certain of the parents’ rights under the decrees. B. 1921-1980 The Consent Decrees and stable sugar prices combined to smooth the troubled relations between the bottlers and the Company. With the exception of some isolated disagreements, not until 1963 did another significant squabble occur between the two sides. At that time the Company introduced TAB, a diet soft drink offered to the bottlers on terms separate from the existing contracts, which provoked the Thomas Co. to threaten suit. The Thomas Co. took the position that TAB was a substitute for or a modified version of Coca-Cola. Eventually, the parties incorporated a clause which purported to preserve their rights: “Neither the execution, nor the performance of this contract by either Party hereto, shall affect in any manner either Party’s rights, responsibilities or covenants to the other Party_” Dkt. 400 (83-95) at 89 (quoting TAB contract, Dkt. 63 (83-95), exh. N). Between the entry of the Consent Decrees in 1921 and 1975, the Company gradually acquired all of the parent bottlers and subparent bottlers, assuming the obligations to the actual bottlers. In 1978, the Company began discussing proposed amendments to the pricing formula in the bottlers’ contracts. Bottlers, concerned by the additional risks they would assume under the Company’s proposal, suggested modifications. After a period of negotiation, the bottlers and the Company settled on a compromise pricing formula. The new formula priced syrup based on a “sugar element,” a “base element,” and the Consumer Price Index. Additionally, the amendment provided that “in the event the Company modified the formula of Coca-Cola Bottlers Syrup to replace sugar with ‘another sweetening ingredient,’ the resulting savings would be passed through to amending bottlers.” Coke III, 654 F.Supp. at 1395. Many actual bottlers accepted the 1978 amendment, but a substantial group preferred to retain their unamended contracts with the original pricing scheme. The plaintiffs in 83-95 did not accept the 1978 amendment. The plaintiffs in 83-120 did accept the 1978 amendment. C. 1980-1988 “After years of research and extensive testing,” Dkt. 798 (81-48) at 13 (Defendant’s Brief in Support of Motion for Partial Summary Judgment), the Company began substituting HFCS for part and eventually all of the sugar used to sweeten Coca-Cola bottle syrup. “HFCS is made ‘by hydrolysis of corn starch by chemical enzymes.’ ” Dkt. 60, at 50. HFCS does not affect the taste of soft drinks in which it is used; HFCS-sweetened Coca-Cola and sucrose-sweetened Coca-Cola are indistinguishable in terms of taste. The Company gradually eliminated all of the sugar in the syrup and utilized HFCS exclusively. Although substituting HFCS for sugar, the Company continued to price syrup sold to unamenders under the letter of the unamended contracts, i.e., according to the purported “market price” of granulated sugar. The Company, however, passed through the savings from the use of HFCS to the amended bottlers, pursuant to the 1978 amendments provision for use of an alternate sweetener. This prompted some unamended bottlers to file suit in 1981 against the Company for breach of contract and breach of the Consent Decrees. The Court’s opinions in Diet Coke I, 563 F.Supp. 1122 (D.Del.1983), and Diet Coke III, 107 F.R.D. 288 (D.Del.1985) contain useful descriptions of the Company’s product innovations following the switch to HFCS. The first of these innovations, diet Coke, was launched in reaction to the Company’s perception that its existing diet product, TAB, “suffered from a relatively narrow market appeal.” Diet Coke I, 563 F.Supp. at 1127. Because the diet market promised to expand by nearly one hundred percent within the decade, and because a ten percent gain in market share meant retail revenues of an additional $5 billion: In 1980, the Company began a two-year market and technical research project aimed at developing the new diet cola. On July 8, 1982, diet Coke was introduced with great fanfare. The name was chosen carefully and focused on the descriptive nature of the word “diet” and the tremendous market recognition of “Coke.” Apr. ’83 Tr. at 41. The advertising emphasized the taste of the new cola and its relationship to Coke, rather than its low-calorie nature. The advertising campaign has been intense and effective. The Company spent some $50 million in research and marketing, has budgeted $31 million for 1983 advertising, and has expanded approximately $20 million to date. Id. at 48_ The Company sold diet Coke syrup to bottlers at the same price as TAB syrup —$3.02 per gallon during the first quarter of 1983 ... [T]he price of Coke syrup to amended bottlers was $3,049 per gallon and $2.69 per gallon to the unamended bottlers during the same time period.... The bottlers want to benefit from th[e] cost savings [from the use of a cheaper sweetener] while the Company insists the higher profit margin is necessary to cover the large research, development, marketing, and advertising costs relating to diet Coke. All agree that the bottlers sell diet Coke at a profit even without the pass-through of savings; therefore, the dispute centers upon who should receive the incremental profit— the Company or the bottlers. The situation is complicated by the manner in which diet Coke was introduced. The bottlers were not consulted before the introduction and no price terms were discussed. Cowart testified that this failure to consult the bottlers occurred because of competitive pressure. Apr. ’83 Tr. at 40. The Company’s fear of the imminent introduction of Pep-sico’s caffeine free colas necessitated the accelerated introduction of the Company’s new entrant in the cola market. In fact, these caffeine free colas, Pepsi-Free and Sugar-free Pepsi-Free, were introduced two days before diet Coke. This series of events had several unfortunate effects from the bottler’s viewpoint: first, the lavish advertising campaign precipitated immediate demand for a product to which the bottlers did not have immediate access; second, this demand strengthened the negotiating position of the Company and weakened that of the bottlers regarding the marketing terms for diet Coke; and third, the failure to consult resulted in somewhat bruised egos. Naturally, bottlers began requesting, if not demanding, diet Coke syrup and beverage base. Many [bottlers, both amended and unamended] felt that the Company was obligated to provide diet Coke under the terms of their existing Bottler’s Contracts for Coke.... The Company, however, took the position that diet Coke was not within the scope of the existing contracts and a new term contract with flexible pricing would have to be developed. On October 7, 1982 the Company formally presented a proposed Phase I/Phase II negotiating procedure to the chairman of an Ad Hoc Committee which was followed by a formal presentation to the Board of Governors of The Coca-Cola Bottlers’ Association. Phase I of the process constitutes the execution of a Temporary Amendment to the Bottler’s Contract which governs the pricing of diet Coke pending a final agreement on a permanent contractual arrangement. Phase II represents negotiations towards the permanent pricing and marketing of diet Coke and other new cola beverages. Phase II negotiations are in progress at this time. The Temporary Amendment is intended to be a interim measure which permits the sale of diet Coke pending permanent resolution of the Bottler’s Contract issues. Approximately 191 first-line bottlers have signed the Temporary Amendment and approximately 181 first-line bottlers, while having not signed, have agreed to the terms of the Temporary Amendment. These 372 first-line bottlers are receiving diet Coke syrup or beverage base and are marketing diet Coke within their exclusive territories. The plaintiffs in this case, who represent approximately 3 percent of the Company’s domestic sales of Bottler’s Syrup, could have access to diet Coke but have refused to either sign or accept the terms of the Temporary Amendment. Consequently, the Company has refused to provide diet Coke syrup or beverage base to these bottlers unless and until they either sign or accept the terms of the Temporary Amendment. Plaintiffs basically object to one clause of the Temporary Amendment which states: 9. It being the intent and purpose of the Bottler and the Company that this Temporary Amendment shall in no way prejudice or otherwise affect their respective rights and obligations under the Bottler’s Contract or from any other source, or their respective legal or equitable claims, the Bottlers and the Company expressly stipulate that this Temporary Amendment shall have no such effect. It is possible that other bottlers may seek through judicial interpretation or otherwise to require the Company to supply Coca-Cola syrup or beverage base for diet Coca-Cola under their existing Bottler’s Contacts at the price then in effect for Bottlers’ Coca-Cola syrup absent this Temporary Amendment. It is further agreed, however, that during the period this Temporary Amendment is in effect, the price of Coca-Cola syrup and beverage base for diet Coca-Cola as between the parties hereto shall be determined solely under this Temporary Amendment. Diet Coke I, 563 F.Supp. at 1127-29 (footnotes omitted) (quoting Dkt. 1 (83-95), exh. W, ¶ 19 of Temporary Amendment). The Company derived new Coke, the second innovation following HFCS, from its development research on diet Coke. [I]n April, 1985, the Company announced that it would stop producing Coca-Cola under the existing formula (“old Coke”) and immediately start producing “new” Coke, which, the Company proclaims, tastes even better than old Coke. According to the promotional materials that accompanied the announcement of new Coke, the formula for new Coke was derived from the research that led to the development of diet Coke. The secret ingredient in new Coke, called “7X-100,” is different than the secret ingredient in old Coke, but it is still only known to a handful of individuals and is kept locked in a bank vault in Georgia. ... [I]n response to consumer demand, announced in July, 1985, that it would bring back old Coke under the name “Coca-Cola Classic.” The Company will now provide bottlers with two kinds of sugar-sweetened cola syrups — old Coke syrup, to be packaged as Coca-Cola Classic, and new Coke syrup. The Company has informed its bottlers that for the present, it will supply them with Coca-Cola Classic syrup under the terms of their contracts for Coca-Cola, but without prejudicing the Company’s rights.... As defendant’s supplemental brief makes clear, the Company is ostensibly reserving the right to decide at a later time that the syrup for Coca-Cola Classic is not Coca-Cola Bottler’s Syrup, even though the identical syrup was considered Coca-Cola Bottler’s Syrup a few months ago.... Diet Coke III, 107 F.R.D. at 291. After years of discovery, the parties now seek to resolve issues that go to the heart of the controversy: the definition of Coca-Cola Bottler's syrup, and the scope of the plaintiffs’ trademark rights. II. PRIOR OPINIONS There are four previous published opinions in the Diet Coke cases, and five published opinions in the Coke case — excluding the opinions released today. An overview of the prior Diet Coke opinions and a brief summary of Coke III will aid the discussion. A. Diet Coke I Diet Coke I denied motions by plaintiffs in both cases (83-95 and 83-120) for a preliminary injunction. The bottlers brought the motions protesting the Company’s policy of offering diet Coke only to bottlers willing to waive temporarily their alleged rights under their existing contracts by executing the so-called “Temporary Amendment.” The bottlers asked the Court for a preliminary injunction permitting them to purchase diet Coke syrup without forfeiting their interim rights. The first question the Court addressed was the probability that the plaintiffs would succeed on the merits. Assessing this probability required the Court to determine whether differences between Coke and diet Coke made diet Coke per se outside the contracts’ scope. If so, no further inquiry would be necessary. To discover whether “the products share[d] common attributes,” Diet Coke I, 563 F.Supp. at 1130, the Court compared the secret ingredients, sweeteners, publicly known ingredients, compositions, and tastes of the two products. The Court also noted the similarities between the two, including the name, packaging, and advertising of diet Coke. Taking these considerations into account, Diet Coke I concluded that “for at least some purposes diet Coke may be Coke.” Id. at 1134. The next step in evaluating probability of success was to examine the rights of the unamended bottlers, i.e., the 83-95 plaintiffs, who claimed diet Coke under their individual contracts and under the 1921 Consent Decrees. The unamended bottlers’ argued essentially two theories: (1) that they were entitled to diet Coke syrup because it was “Coca-Cola Bottler’s Syrup” under the contracts and decrees; and (2) that their trademark rights comprised diet Coke as well as Coke. The contracts between the bottlers and the Company are standard and in most cases identical. The contracts do not define the syrup to which the bottlers are entitled. In various places throughout a typical bottler’s contract, several terms are used to refer to syrup: “syrup for bottling purposes,” “Bottlers’ bottle syrup, COCA-COLA,” and “Coca-Cola syrup.” Dkt. 1 (83-95), exh. J (Monahans Coca-Cola Bottling Company Bottle Contract). A clue to the scope of the syrup term is found in Paragraph 10 of the Consent Decrees, which provides that the Company shall supply “high grade standard Bottlers Coca-Cola Syrup,” containing at least 5.32 pounds of sugar per gallon. Dkt. 1 (83-95), exh. S, at 6 (Consent Decree). Whatever the term “standard Bottlers Coca-Cola syrup” means, it appeared to the Court at first glance that “the syrup must contain 5.32 pounds of sugar.” Diet Coke I, 563 F.Supp. at 1135. Thus, the Court concluded that it was unlikely that diet Coke syrup fell within the meaning of Bottler’s Coca-Cola syrup. Next, the Court turned to the bottlers’ arguments regarding their trademark rights. The bottlers’ contracts contain provisions granting them certain rights to the trademarks “Coca-Cola” and “Coke” for use on bottled products within their respective territories. The plaintiffs asserted in Diet Coke I that these trademark rights entitled them “to obtain, bottle, and sell any product in receptacles bearing the name Coke or Coca-Cola.” Id. at 1136. After reviewing the contractual lineage of the plaintiffs’ trademark rights and the interpretation of those rights set forth in Judge Morris’s opinion, I preliminarily held that, viewing the “maximum aggregate of rights that the plaintiffs may possess,” id. at 1138, the Company had violated none of these rights. Therefore, the unamended plaintiffs failed to establish the requisite probability of success on the merits, Because the trademark rights and rights under the original contracts and Consent Decrees of the amenders were identical to those of the unamenders, the amended bottlers similarly failed to establish a probability of success on the merits. These plaintiffs, however, put forth a third ground in support of their motion: the language of the 1978 amendment. The last portion of ¶ 1(c) of the amendment states: In the event that the formula for Bottle Syrup is modified, in whole or in part, with another sweetening ingredient, the Company will modify the method for computing the Sugar Element in such a way as to give the Bottler the savings realized as a result of such modification through an appropriate objective quarterly measure of the market price of any such sweetening ingredient. The Sugar Element would continue to fluctuate in the manner described above for sugar. The unamended bottlers contended that the language “another sweetening ingredient” included saccharin. The Company retorted that the clause did not apply because diet Coke is not a modified version of Coca-Cola. Upon reviewing the extensive interpretative evidence, the Court concluded that saccharin probably was “another sweetening ingredient” for the purposes of the amendment. Having determined that the amended but not the unamended plaintiffs had satisfied the first prong of the standard for granting preliminary injunctive relief, a probability of success on the merits, the Court next addressed the second prong of the standard: a showing that irreparable injury will result in the absence of relief. Because “virtually every harm the bottlers ... articulated would be eliminated by signing the Temporary Amendment,” Diet Coke I, 563 F.Supp. at 1141, the bottlers failed to meet their burden of showing irreparable injury. Accordingly, a preliminary injunction did not issue. B. Diet Coke II Diet Coke II resulted from the amended bottlers’ motion for summary judgment concerning the coverage of the term “Coca-Cola Bottler’s Syrup.” The amen-ders contended that, whatever the meaning of Coca-Cola Bottler’s Syrup, their amended contracts cover the “modification” of that syrup by replacing sugar with “another sweetening ingredient.” Dkt. 1 (83-120), exh. A-4, at 1 (1978 amendment to Alexandria Coca-Cola Bottling Company's contract). The Company replied that “Bottle Syrup” always has been intended to refer “to a single product, ‘traditional’ Coca-Cola.” Diet Coke II, 637 F.Supp. at 1227. Buttressing its “single product” argument, the Company asserted that there was no evidence that either it or the bottlers intended the 1978 amendment to encompass a “future, unknown diet product.” Id. The Company further argued that Coca-Cola Bottler’s Syrup must be defined by “certain essential attributes,” id., which diet Coke does not exhibit. Finally, the Company contended that there were genuine issues of material fact concerning the meaning of Coca-Cola Bottler’s Syrup and the intent of the parties in 1978. The Court concluded that the motion for summary judgment could not be granted. The threshold question is whether “Coca-Cola Bottler Syrup” includes a category of cola syrups, or whether the phrase can reasonably by read as referring to a particular product.... [T]o determine whether plaintiffs are entitled to diet Coke under their amended contracts, the Court must look to the nature of the parties[’] business, their established course of dealing and, ultimately, the 1978 negotiations. After examining the parol and extrinsic evidence submitted by the parties, the Court concludes that the question of product coverage is a disputed issue of fact which precludes summary judgment. Id. at 1228 (footnotes omitted). C. Diet Coke III The third diet Coke decision treated the plaintiffs’ motion to compel disclosure of several of the Company’s secret formulae. Taking note of the renowned secrecy of Merchandise 7X, “the ingredient that gives Coca-Cola its distinctive taste,” Diet Coke III, 107 F.R.D. at 289, and of the “impregnable barriers which the Company ... erected to protect its valuable trade secret,” id., the Court nevertheless ordered disclosure of the formulae for “old Coke” (Coca-Cola Classic), new Coke, caffeine free Coke, and diet Coke. The Court based its order of disclosure on the judgment that the plaintiffs had met their burden of demonstrating relevancy and a need for the formulae greater than the Company’s need for protection of its secrets. The relevance of the formulae followed from the plaintiffs’ contentions that the terms “Bottlers’ Coca-Cola syrup” and “bottle syrup” in their contracts “include any syrups manufactured by the Company for the purpose of providing any packaged soft drink sold under the names “Coca-Cola” or “Coke,” including diet Coke.” Id. at 295. One of the Company’s main lines of defense had been to argue that the product were separate, and that “only syrup for sugar-sweetened Coca-Cola is covered by the unamended bottlers’ contracts.” Id. The amended bottlers argued in addition to the arguments of the unamenders that the language of the 1978 amendment enabled amenders to receive diet Coke under existing contracts. The Company countered that the 1978 amendment language relied upon by the amenders was “inapplicable because diet Coke is a new and different product and is not modified Coca-Cola.” Id. Thus, for both amenders and unamen-ders, the different product argument became central. The plaintiffs could not realistically rebut this argument without information concerning ingredient similarity and dissimilarity and the reasons therefor. The Court rejected the Company’s declaration that “except for the difference in sweeteners, ingredient similarities and differences [were] not relevant,” id. at 296, and that “difference in taste, different essential characteristics of the beverages, different consumer markets for the beverages, and different consumer perceptions of the beverages,” conclusively established that diet Coke fell outside the coverage of the contracts. Finding the likelihood of harm to the Company “less than if the defendant’s trade secrets were disclosed in litigation to competitors,” id. at 299, the Court held that the Company must disclose its formu-lae for Coke Classic, new Coke, caffeine free Coke, and diet Coke, but not TAB or experimental colas never marketed. TAB’s formulae was held irrelevant, although “[o]ther aspects of TAB ... might be relevant,” and would be discoverable. Id. at 297 n. 7. The Court found the formula for TAB irrelevant because a showing by the plaintiffs that “diet Coke is more like Coke than like TAB does not tend to show that diet Coke and Coke are the same product.” Id. at 297. Unlike caffeine free Coke, which is the same product as Coke according to the Company, id. at 296, TAB is not admittedly the same product as Coke, and the plaintiffs do not so contend. Therefore, TAB’s formula is unnecessary for the plaintiffs to demonstrate that diet Coke is more similar to Coke than TAB is similar to Coke. D. Diet Coke IV Unwilling to surrender its secret formu-lae, the Company chose not to obey the discovery order. The plaintiffs then moved for sanctions, requesting “entry of an order under Fed.R.Civ.P. 37(b)(2)(C) striking the Company’s answer and entering judgment in favor of plaintiffs” on several counts of both complaints. Diet Coke IV, 110 F.R.D. 363, 366-67 (D.Del.1986). On the Court’s suggestion, the parties attempted to agree on a preclusion order devised so as to “in no way prejudice plaintiffs and in no way benefit defendant,” id. at 367, but were unable to come to terms, and submitted differing proposals. Reviewing Rule 37(b)(2) and concluding that sufficient authority existed under subsection (A), the Court entered a preclusion order giving plaintiffs “the advantage of every possible inference that fairly could be drawn from the formulae evidence sought.” Id. at 369. The Court also held that the “[defendant may not qualify [the favorable comparisons established by the order] by noting the difference in sweetener.” Id. The preclusion order is less sweeping than the plaintiffs desired, despite its treatment of formula issues as most favorable to plaintiffs, because an order “coextensive with the issues to which the withheld for-mulae evidence is relevant” would amount to the “functional[ ] equivalent [of] a default judgment.” Id. at 369 & 369 n. 16. The Court noted that “[i]ngredient identity is not necessarily the same as product identity.” Id. at 370. Additionally, “[categories of evidence other than the formulae— such as taste identity, marketing history and strategy, consumer perceptions, and packaging — are urged by the Company as being relevant to the product identity issue. If the Company is correct in whole or in part, it may be able to overcome whatever showing could be made on the basis of the formulae evidence.” Id. at 370. Diet Coke IV allows the Company to rely on the sweetener difference between diet Coke and the other products concededly covered under the contracts only to the extent this difference relates to the elements of proof set forth in its preliminary statement of issues. See Dkt. 223 (83-95), Dkt. 160 (83-120). The Court forbade the defendant, however, from using “formula evidence in any manner not outlined in defendant’s preliminary statement of issues and at oral argument.” Diet Coke IV, 110 F.R.D. at 372. Thus, the defendant generally is limited to arguments based on the course of conduct of the parties, the Consent Decrees’ requirement that the syrup contain 5.32 pounds of sugar per gallon, and the plaintiffs’ interpretations of their contracts. Id. The preclusion order, which is set out in full as an appendix to the Diet Coke IV opinion, see 110 F.R.D. at 373-77, establishes, inter alia, the following facts: (a) the formula for diet Coke syrup is within the range of formulae for syrups that have been sold as Coca-Cola Bottler’s Syrup; (b) diet Coke was formulated to taste like and otherwise resemble old Coke as much as possible for a low-calorie cola; (c) the formula for diet Coke is significantly more like the formula for old Coke than the formula for any other version of Coca-Cola, including new Coke and caffeine-free Coke, is like the formula for old Coke; (d) the formula for diet Coke is significantly more like the formula for new Coke than the formula for any other version of Coca-Cola, including old Coke and caffeine-free Coke, is like the formula for new Coke; (f) 99% of the total number of ingredients in diet Coke and old Coke, and in diet Coke and new Coke, are the same; (g) the term “Coca-Cola Bottler’s Syrup as used in the 1921 Consent Decrees and as used in the perpetual contracts between the defendant and the plaintiffs has included a wide variety of different syrups made with different ingredients having different tastes according to the different formulae, all of which were manufactured by the defendant and sold to the plaintiffs as “Coca-Cola Bottler’s Syrup” under their perpetual contracts between July 21, 1899 and the current date; (h) the differences in the ingredient compositions, chemical compositions, formu-lae, and tastes between some of the earlier versions of Coca-Cola Bottler’s Syrup which the defendant manufactured and sold to bottlers as Coca-Cola Bottler’s Syrup between 1899 and 1980 and other versions of Coca-Cola Bottler’s Syrup which it manufactured and sold to bottlers during the 1899-1980 period were greater in number, greater in magnitude, more significant, and more noticeable to consumers than any such differences which exist between the syrup for diet Coca-Cola and the version of “Coca-Cola Bottler’s Syrup” which defendant was manufacturing and selling to bottlers under their contracts during the period 1980 through April 1985, immediately prior to introduction of new Coca-Cola; (i) the ingredient differences between diet Coke syrup and Coca-Cola Classic syrup are less significant between the two syrups as a whole, involve fewer ingredients and less significant ingredients from the standpoint of the ingredient composition, chemical composition, and formulae than the ingredient differences which exist between the syrup for Coca-Cola Classic and the syrup for new Coca-Cola, which was introduced by defendant on August 25, 1985, and has been sold by defendant as “Coca-Cola Bottler’s Syrup” within the meaning of its contracts with plaintiffs since that date; (j) prior to the defendant’s introduction of new Coca-Cola syrup in April, 1985, all of the syrups which defendant formulated and sold to bottlers as “Coca-Cola Bottler’s Syrup” to produce a carbonated soft drink that used the Coca-Cola or Coke trademarks, including diet Coke (and with the exception of caffeine-free Coca-Cola), shared the following attributes: (1) they were caramel colored. (2) they were “colas.” (3) they were sold for the purpose of being mixed with carbonated water, sealed in a bottle or can, and sold under the trademarks Coca-Cola or Coke for consumption as a beverage. (4) they contained Merchandise No. 5, which is a flavoring compound composed of oils extracted from cola leaves and extracted from kola nuts; Merchandise No. 5 has been used by defendant in every version of “Coca-Cola Bottler’s Syrup” produced since 1899. (5) They contained Merchandise 7X, which is a secret blended emulsion of flavor oils which constitutes the core of the Coca-Cola formula, the only unique and distinctive and significant part of Coca-Cola syrup, the source of unique and distinctive taste, aroma, mouthfeel, and other organoleptic properties of Coca-Cola that distinguish Coca-Cola from competing soft drinks such as Pepsi Cola; the defendant has used Merchandise 7X without change in every version of Coca-Cola Bottler’s Syrup manufactured and sold to bottlers under the terms of their contracts from 1899 until the current date, with the exception of caffeine-free Coca-Cola syrup which contains a modified version of Merchandise 7X and new Coca-Cola syrup which contains no Merchandise 7X. The preclusion order also makes the following findings with respect to diet Coke syrup: (1) diet Coke syrup contains the identical amounts of Merchandise 7X, Merchandise No. 5, vanilla extract, and caffeine as the version of Coca-Cola Bottler’s Syrup sold from 1980 through 1985 (Coca-Cola Classic syrup) (112.(1)(1)) (2) the defendant used the ingredients listed above “to match the taste, aroma, mouthfeel, and all other organoleptic properties of the bottled Coca-Cola as it existed during that period.” (112.(1)(1)) (3) the defendant changed the publicly-disclosed ingredients in diet Coke to counterbalance the taste difference caused by the low-calorie sweetener (4) the formula, compositional, taste, and “other physical organoleptic” distinctions between diet Coke and classic Coke “are much less significant, much fewer in number, and much less noticeable to the consumer than: (a) the differences between Classic Coke and earlier versions of Coca-Cola Bottler’s Syrup; (b) the differences between new Coke syrup and the syrup for Classic Coke and previous versions of Coke; (c) the differences (except for taste and organoleptic properties) between caffeine-free Coke syrup and Classic Coke syrup; and (d) the differences between various versions of Coca-Cola Bottler’s Syrup sold between 1899 and 1980.” (112.(1)(3)) New Coke syrup, even apart from the preclusion order, is deemed by the defendant to be Coca-Cola Bottler’s Syrup. The preclusion order solidifies this admission into incontestable fact, and goes on to describe new Coke as: produced by an entirely new and different formula, with materially different ingredients (including secret ingredients), a materially different flavor profile, and a materially different taste than [Coca-Cola Classic]; and ... the syrup for new Coca-Cola also materially differs in all of the respects enumerated above from any earlier version of “Coca-Cola Bottler’s Syrup” which defendant has ever produced.... (II 2.(m)). The ingredient differences between new Coke and Classic Coke delineated in the order are as follows: (1) new Coke’s formula is not “a modification, extension, or improvement of the original Coca-Cola formula”; (2) new Coke does not contain Merchandise 7X, the most significant part of the original formula for Coke; (3) none of new Coke’s secret ingredients are common to the original Coke formula’s secret ingredients; (4) “the use of different secret ingredients in new Coca-Cola gives new Coca-Cola a flavor complex, ‘flavor profile,’ and taste that is materially different from the flavor complex, profile, and taste of the version of ‘Coca-Cola Bottler’s Syrup’ which [was] sold to bottlers from 1980 through April 1985 ..., and all of which are major, significant, and give new Coke a significantly different taste.” (112.(m)). Paragraph 2.(n) of the order finds that the only compositional difference between diet Coke and (1) new Coke, (2) Classic Coke, and (3) caffeine-free Coke, is the different sweetener. Paragraph 2.(o) states that the defendant planned to formulate diet Coke so as to reproduce as nearly as possible the taste and appearance of the three colas listed above. Paragraph 2.(q) explains that the secret ingredients in diet Coke, new Coke, and/or Classic Coke are identical and used in the same ratios. The Court allowed the plaintiffs to choose among the facts included in the preclusion order as they saw fit. Thus, if the plaintiffs decide that diet Coke's similarities to new Coke are more advantageous to them than diet Coke’s similarities to Classic Coke, the formula-related facts supporting the comparison are available to them. See, e.g., Diet Coke IV, 110 F.R.D. at 370-71 n. 19. The overarching goal of the preclusion order was to prevent any prejudice to the plaintiffs and to prevent any benefit to the defendant. Diet Coke IV, 110 F.R.D. at 369. E. Coke III In Diet Coke IV, the Court reserved the question of whether the Elizabethtown litigation would yield a definition of sugar applicable to the diet Coke cases. 110 F.R. D. at 372 n. 23. Now that sugar has been defined in Coke III as sucrose made from cane or beets, no reason appears for failing to give that definition preclusive effect here. The Court settled on a definition after an extensive trial, see Coke III, 654 F.Supp. 1388, and adhered to that definition in the face of the defendant’s motion for amendment. See Coke IV, 654 F.Supp. 1419. Principles of collateral estoppel prevent the defendant from asserting a definition of sugar inconsistent with the holding of Coke III. Therefore, “sugar,” for the purposes of the diet Coke cases will mean sucrose from cane or beets: a definition that excludes HFCS. III. THE SUMMARY JUDGMENT STANDARD The standard applicable to the consideration of summary judgment motions is laid out in three recent United States Supreme Court decisions: Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). These decisions refocus the summary judgment standard, clarifying the movant and non-movant’s responsibilities. The movant must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a crucial element of his or her case. The non-movant must then identify portions of the record which tend to support the allegedly unsupported element. See Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Significantly, this trilogy of cases assures the trial court that where the party bears the burden of proof on an issue, and the evidence pertaining to that issue plainly falls short of the party’s burden, summary judgment is proper. See Anderson, 477 U.S. 248-49, 106 S.Ct. at 2510-11. With these principles in mind, I will turn to the parties’ motions. With these extended preliminaries out of the way, the Court now will address: (1) defendant’s motion for summary judgment as to the definition of Coca-Cola Bottler’s Syrup, and the plaintiffs’ cross-motion on this issue; (2) the amended plaintiffs’ separate cross-motion concerning their rights under the 1978 amendment; (3) the defendant’s motion for summary judgment in both cases on the plaintiffs’ trademark and anti-dilution claims, and the plaintiff’s responding cross-motions; and (4) the defendant’s motion for summary judgment on the plaintiffs’ antitrust claims. IV. COCA-COLA BOTTLER’S SYRUP DEFINED A good portion of this litigation has been devoted to inspecting the uncertain limits of the phrase “Coca-Cola Bottler’s Syrup.” Where those limits fall will largely determine the merits of the plaintiffs’ claims to diet Coke under their existing contracts. Each side has moved for summary judgment on the issue. The Company has moved for summary judgment in both cases. Its motion in the unamenders case is limited to the question of the plaintiffs’ rights to diet Coke syrup at the formula price established in the Consent decrees. As to the amended plaintiffs, the Company moves for summary judgment only to the extent that these plaintiffs rely on the unamended portions of their contracts. The unamended and amended plaintiffs have cross-moved separately, asserting different grounds. The following section deals only with the issues common to both groups of plaintiffs. The parties disagree on which undisputed facts are material and on the inferences to be drawn from those facts. The parties also disagree on the proper formulation of the issue: the Company suggests that the crux of the question lies in “whether the sugar-based pricing formula of the 1921 Consent Decrees and the unamended bottle contracts applies to the sugarless syrup for diet Coke” (Dkt. 396 at 2); the bottlers, on the other hand, frame the core issue as whether diet Coke falls within the scope of the specialized trade term “Coca-Cola Bottler’s Syrup.” The Court will proceed with the plaintiffs’ construction of the question, because that suggested by the defendant, while not wrong, inverts the inquiry. The pricing system set up by the Consent Decrees does relate to the definitional question. The sugar-based pricing may weigh in favor of an interpretation of Coca-Cola Bottler’s Syrup that excludes diet Coke. However, other factors may weigh in favor of inclusion: the simple question is, is it in or is it out? A. The Parties’ Contentions The Company hinges its motion on the cumulative effect of a variety of factors: the intent of the parties to the 1921 Consent Decrees; the parties’ course of performance; the explicit requirement of “sugar” in the decrees; the sugar-based pricing of the decrees and derivative contracts; and the asserted reservation by the Company of the right to exclude “sugarless” colas from the coverage of the contracts. The Company also cites the deposition testimony of several individual bot-tiers, claiming the testimony is inconsistent with the bottlers’ legal theories. The plaintiffs’ rebut the Company’s reasoning with five key assertions of their own: (1) that the logical extension of the preclusion order directs a finding that diet Coke syrup is Coca-Cola Bottler’s Syrup; (2) that HFCS is not sugar for any purpose in the context of this litigation; (3) that the Company’s conduct in treating “sugarless” (i.e., HFCS-sweetened) syrups as Coca-Cola syrup prevents the Company from arguing that diet Coke syrup is not covered because it lacks sugar; (4) that the only logical definition encompassing all of the various syrups treated as Coca-Cola syrup is a functional one; and (5) that testimony of individual bottlers concerning the legal aspects of their contracts is irrelevant. In support of their cross-motion, the plaintiffs maintain that their proffered functional definition best represents the intent of the contracting parties and the true scope of the contracts as they have evolved. The plaintiffs also point to the collective effect of the preclusion order, the ruling in Coke III that HFCS does not fall within the contractual extent of the term sugar, and the defendant’s allegedly binding admissions and conduct. Taking these factors in combination, according to the plaintiffs, leads surely to the conclusion that diet Coke syrup is Coca-Cola Bottler’s Syrup. Finally, the plaintiffs rely on analogies to other decisions concerning the treatment of new products in the context of long-term contractual relationships. B. Coca-Cola Bottler’s Syrup: Definitions The parties have devised four diverse definitional schemes for analyzing the scope of Coca-Cola Bottler’s Syrup under the contracts: (1) functional (plaintiffs); (2) sweetener-based (defendant); (3) range of products (plaintiffs); and (4) literary (both plaintiffs and defendant). The Court will address these possible definitional frameworks in turn. 1. The Functional Definition The plaintiffs’ functional definition runs something like this: Coca-Cola Bottler’s Syrup is any syrup produced by the defendant for the purpose of producing a soft drink sold in association with the name Coca-Cola. An alternate form of the functional definition suggests that any caramel-colored, carbonated cola beverage that might subsequently be produced and marketed under the Coca-Cola mark would be covered under the contracts. The plaintiffs assert that no other definition of Coca-Cola Bottler’s Syrup other than the functional definition encompasses “the wide variety of syrups, including the syrup for new Coke, that have been sold by defendant under the bottlers’ contracts as Coca-Cola Bottler’s Syrup.” Dkt. 400 at 6. The defendant attacks the plaintiffs’ functional definition as inconsistent with its arguments in the Coke case, as a newly-hatched creature of this litigation and not a fair representation of contractual intent, and as simplistic and overly trademark-intense. The defendant insists that the plaintiffs’ functional definition does not comport with their objection to the use of HFCS, which is the subject of the Coke case. The plaintiffs retort that their objection to the use of HFCS-sweetened syrup was due to the Company’s failure to pass through the savings realized from the cheaper sweetener. Their objection thus was to the pricing of HFCS syrup; they did not object to the Company’s practice because they viewed HFCS syrup as outside the scope of the term Coca-Cola Bottler’s Syrup. Rather, they objected to the pricing of HFCS syrup based on the market price of granulated sucrose when the syrup contained no sucrose (or contained only 75% or 50% sucrose). The defendant finds the plaintiffs’ functional definition noxious also because of its recent appearance. The Company apparently believes that the functional definition cannot explain the coverage of the syrup term because the plaintiffs did not come up with it earlier. The age of plaintiffs’ arguments, however, is of little importance. Some of the defendant’s theories also have sprung full grown, Athena-like, from the brains of counsel in this litigation, rather than from the minds of the contracting parties. One possible difficulty with the functional definition which the defendant has correctly identified, however, is the sugar-based pricing provisions of the contracts. The contracts most likely import the Consent Decrees’ requirement that the syrup provided by the Company to the bottlers must contain 5.32 pounds of sugar per gallon, a possibility recognized in Coke V. See 668 F.Supp. at 916. Paragraph 10 of the Consent Decrees also performs a quality control function; a function hard to reconcile with the plaintiffs’ functional definition. However, the extent to which the definition of Coca-Cola Bottler’s Syrup may be controlled by the pricing and sweetener provisions of the decrees is debatable. 2. Sweetener-Based Definition A second possible definition, one favored ■ by the defendant, is to accept “sugar” as a definitional characteristic of Coca-Cola Bottler’s Syrup. In other words, the defendant proposes that, whatever Coca-Cola Bottler’s Syrup may mean, it cannot mean a syrup without at least 5.32 pounds of sugar per gallon. Interestingly, the Company suggests that “sugar” is a necessary characteristic of Coca-Cola Bottler’s Syrup, as if the Court’s definition of that term in Coke III were irrelevant here. Under the Coke III definition of “sugar,” which is the definition applicable to the Consent Decrees, HFCS-sweetened syrup is not sugar-sweetened syrup, although the two are both “highly caloric” and indistinguishable in taste. Additionally, the Company has tested HFCS as different from “sugar,” giving amended bottlers the benefit of HFCS’s lower cost through the provisions of the 1978 Amendment. Aside from the inconsistency of the defendant’s position with respect to sugar, the sweetener-based definition fails to take into account the established ingredient similarities between diet Coke and Classic Coke, and the dissimilarities between new Coke and Classic Coke. Moreover, sweeteners alone cannot answer the question of contractual coverage. Though relevant, neither sweetener differences nor formula similarities are dispositive. 3. Range of Products Definition The third option for defining Coca-Cola Bottler’s Syrup is the range of products theory. This definition owes its existence to the preclusion order. By substituting “products” for “formulae” in the preclusion order, the plaintiffs end up with all the premises they need to build logical syllogisms demonstrating that diet Coke is covered by the term Coca-Cola Bottler’s Syrup. The Company designates this argument the “product identity” argument. As noted above, the preclusion order takes as given that the formulae evidence weighs most heavily in favor of the plaintiffs. The formulae and formulae-based facts established by the order place diet Coke as close as possible to new Coke, which is covered by the contracts, while placing new Coke as far as possible from previous syrups covered by the contracts. See Diet Coke IV, 110 F.R.D. at 371 n. 22 (“The Order lets plaintiffs establish that from a formula perspective ‘the gap between old Coke and new Coke is as wide as the Grand Canyon and that the gap between diet Coke and new Coke is perhaps as narrow as the width of a piece of paper.’ ”). The preclusion order, however, does not establish that diet Coke is Coca-Cola Bottler’s Syrup. Diet Coke IV, 110 F.R.D. at 371 n. 20. “While the formulae are relevant to this litigation, it is equally clear that the formulae will not necessarily determine the outcome of this litigation: ‘To define a product solely by its chemical composition disregards other important definitional criteria.’ ” Id. at 369-70 (quoting Diet Coke I, 563 F.Supp. at 1134). 4. The Literary Definition Lastly, the plaintiffs have made much of the defendant’s “Humpty-Dumpty” definition of Coca-Cola Bottler’s Syrup. The Carrollian interpretative model, though, is not peculiar to the defendant. Both sides have indulged in “it means what I choose it to mean” pronouncements. For example, one bottler has expressed the belief that the contract entitles him to every syrup produced by the defendant, even the syrup for Diet Minute Maid. See Dkt. 396A (83-95), exh. 14, exh. 18 at 32-33, 53-54 (Montgomery dep.). Company officials, however, appear to be even more fond of the Humpty-Dumpty view than individual plaintiffs: Q. And it [new Coke syrup] is under The Coca-Cola Company’s interpretation of the contract Coca-Cola Bottlers Syrup, even though it is a new product made according to a new formula? A. Yes. Q. And the syrup which was being manufactured on April 22, 1985, under the old formula was also Coca-Cola bottlers syrup? A. At that time, yes. Q. And is it any longer Coca-Cola bottlers syrup? A. Coca-Cola Bottlers Syrup is what is currently being manufactured as Coca-Cola bottlers syrup. Dep. of Brian G. Dyson, President of Coca-Cola USA, at 131-32 (Dkt. 241) (83-95). Q. So in your opinion whether or not something is Coca-Cola bottlers syrup does not depend on whether or not it is made in accordance with a formula that The Coca-Cola Company has previously used to manufacture Coca-Cola bottlers syrup which it sold to bottlers; is that correct? A. In my opinion it is only if it is being made by The Coca-Cola Company expressly for the purpose of being sold to Coca-Cola bottlers as Coca-Cola syrup. Id. at 134-35 (Dkt. 241) (83-95). Roberto C. Goizueta, Chairman of the Board of The Coca-Cola Company, testified: Q. Is the syrup from which new Coke is made Coca-Cola Bottle Syrup? A. It is. Q. Is the syrup from which old Coke, that is, the Coke that was being produced on or before April 22, 1985, Coca-Cola Bottle Syrup? MR. JONES: Was it Coca-Cola Bottle Syrup at the time; is that your opinion? MR. BONDURANT; Was it at the time. THE WITNESS: Yes. Q. Is it at the present time? A. No. Q. So the syrup with the identical formulation, in effect, prior to April 22, 1985, in your opinion is no longer Coca-Cola Bottle Syrup? A. No. Q. Can you tell me why it is no longer Coca-Cola Bottle Syrup? A. Number one, it is not being produced to sell to Coca-Cola bottlers who produce a product to be sold as Coca-Cola. The syrup now being produced as the Coca-Cola Syrup and sold to bottlers as Coca-Cola Syrup — sold to bottlers of Coca-Cola to be produced into the beverage Coca-Cola is the syrup which has a different composition. Q. I’m trying to understand why you say the syrup that was produced up through April 22, 1985, is