Full opinion text
FARNAN, District Judge. OPINION These actions are two consolidated cases brought against The Coca-Cola Company, a Delaware corporation (hereinafter “the Company”) by certain independently-owned Coca-Cola bottlers (referred to collectively hereinafter as “plaintiffs” or “the bottlers”). These actions, which for ease of reference will be referred to as the “diet Coke cases,” were originally filed in 1983 and have thus far resulted in eight years of litigation, six published opinions, one bench trial, and numerous unpublished opinions and orders. The bench trial was conducted before the Hon. Murray M. Schwartz in December 1988 — January 1989. Before he could render decision, Judge Schwartz became too ill to continue with this litigation. The cases were reassigned to me. Offered the option of my deciding the cases based upon the record developed before Judge Schwartz or a retrial, the parties chose to retry the cases. A nine-day bench trial was conducted before me on various dates during October-November, 1990. This Opinion constitutes the Court’s Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a) in both C.A. No. 83-95 and C.A. No. 83-120. INTRODUCTION These are two of three related actions involving the contracts which govern the relationship between The Coca-Cola Company and its bottlers. The diet Coke cases arise out of contractual disputes between the Company and certain of its bottlers over whether the syrup for diet Coca-Cola (referred to interchangeably as “diet Coca-Cola” and “diet Coke”) is covered under the terms of the bottlers’ contracts with the Company. A related case, Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Company, 769 F.Supp. 599 (referred to hereinafter as the “Elizabeth-town litigation”), involves contractual disputes over the supply of syrup for the product Coca-Cola. The long and tortured history of this litigation has been recited elsewhere, including most recently in this Court’s opinion issued this date in the related Elizabethtown case (referred to hereinafter as the “Elizabethtown opinion”), and the Court refers the reader to these recountings for a detailed recital of the events leading to this and the related Elizabeth-town litigation. See, e.g., Coca-Cola Bottling Co. of Shreveport, Inc. v. The Coca-Cola Co., 696 F.Supp. 97 (D.Del.1988); Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Co., 696 F.Supp. 57 (D.Del.1988). Because an understanding of the contractual relationships and history of the parties is necessary to an understanding of the issues in these cases, the Court will briefly outline the background facts once again here. The following narrative is intended to provide the necessary background for the reader uninitiated to this litigation and is drawn from various sources, including the prior published opinions and evidence in the record. Those factual findings necessary to the Court’s holdings in these matters will be treated in greater detail in the Findings of Fact. In 1886, Dr. John Smyth Pemberton, an Atlanta pharmacist developed the formula for Coca-Cola syrup, which could be mixed with carbonated water to produce the beverage Coca-Cola. On June 6, 1887, he registered the name “Coca-Cola” written in Spencerian script as a trademark “for soda water and other beverages.” Between 1888 and 1891 Asa G. Candler, another Atlanta pharmacist, acquired ownership of the Coca-Cola trademark and formula. In 1892, Candler formed the Coca-Cola Company, a Georgia corporation (the “Georgia corporation”), to manufacture and market Coca-Cola syrup for sale in soda fountains. On July 21,1899, the Georgia corporation entered into a contract with B.F. Thomas and J.B. Whitehead, granting to Thomas and Whitehead the exclusive right to sell Coca-Cola in bottles throughout the United States, except in six New England States, Mississippi, and Texas (the “1899 contract”). The 1899 contract also gave Whitehead and Thomas the exclusive right to use the trademark “Coca-Cola” on bottles containing the Coca-Cola beverage in the territories covered by the contract. The 1899 contract contemplated the formation by Whitehead and Thomas of a corporation to be known as “Coca-Cola Bottling Company” to which the rights to sell Coca-Cola in bottles would be assigned. The contract contemplated construction and operation at the expense of Whitehead and Thomas of a bottling facility in Atlanta and any additional facilities that would be necessary to meet demand. The 1899 contract obligated the Company to sell to Whitehead and Thomas their requirements of Coca-Cola syrup at a fixed price. By an undated amendment, the 1899 contract was amended to fix the syrup price at $1.00 per gallon, less a 10$ per gallon rebate to pay for “labels and advertising matter” to be provided by the Company at its actual cost. The syrup was to be bottled under pressure of one atmosphere in proportions of not less than one ounce of syrup to eight ounces of water. The bottling facilities constructed in Atlanta and Chattanooga, Tennessee by Coca-Cola Bottling Company were soon unable to meet the demand for bottled Coca-Cola. Beginning in 1900, Coca-Cola Bottling Company entered into contracts by which Coca-Cola Bottling Company assigned certain of the rights acquired by Whitehead and Thomas under 1899 contract and provided the syrup it acquired from the Company pursuant to the 1899 contract to individuals, partnerships, and corporations who in turn built bottling plants and promoted and sold bottled Coca-Cola in exclusive geographic territories. Under this arrangement, Coca-Cola Bottling Company is referred to as a “parent bottler” and the entities to which it provided the syrup are referred to as “actual bottlers.” A dispute arose between Whitehead and Thomas over the desirable contract period with the actual bottlers. Whereas Thomas favored a two-year term, Whitehead favored perpetual contracts. With the Georgia corporation’s permission, Whitehead and Thomas divided the rights granted to them under the 1899 contract. Thomas retained ownership of Coca-Cola Bottling Company (for ease of reference referred to hereinafter as the “Thomas Company”). The Thomas Company conveyed to Whitehead and his new business associate, J.T. Lupton, its rights under the 1899 contract for all territories except the District of Columbia and the states of New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, North Carolina, Tennessee, Kentucky, Indiana, Ohio, Washington, Oregon, California, and small portions of Georgia and Alabama. Whitehead and Lupton then formed a Tennessee corporation called Dixie Coca-Cola Bottling Company, the name of which was thereafter changed to The Coca-Cola Bottling Company (for ease of reference, referred to hereinafter as “Whitehead-Lupton Company”). The Georgia corporation, Thomas Company, and Whitehead-Lupton Company joined in amending the 1899 agreement to reflect the division. The Thomas Company and the Whitehead-Lupton Company both continued to operate as “parent bottlers.” The Whitehead-Lupton Company and the Thomas Company further divided their territories among other parent and “subparent bottlers.” Subparent bottlers of the Whitehead-Lupton Company included Western Coca-Cola Bottling Company and The Coca-Cola Bottling Company (1903). Subparent bottlers of the Thomas Company were Coca-Cola Bottling Works, Coca-Cola Bottling Works the 3d, and Pacific Coca-Cola Bottling. The two bottling plants built by Whitehead and Thomas in Atlanta and Chattanooga were sold to the actual bottlers to whom the rights for those territories were assigned. Thereafter the parent bottlers did not own any Coca-Cola bottling plants, nor were they engaged in the actual bottling or sale of Coca-Cola beverage, which was left entirely to the actual bottlers. The 1899 contract was modified in 1915 in response to passage of the Clayton Act in 1914. In addition to the modifications relevant to the Clayton Act, the 1915 Amendment formally incorporated an increase in the price of the syrup from 90$ to 92$ per gallon, an increase which was offset by a reduction from 10$ to 8$ in the amount of advertising material per gallon of syrup the parents were required to purchase from the Georgia corporation. This pricing change had been informally agreed upon by the Georgia corporation and the parent bottlers in 1907. The 1915 Amendment was the first instance in which the phrase “Bottler’s Syrup” appears in a contract between the Georgia corporation and the parent bottlers. In 1919, the property, good will, and business of the Georgia corporation founded by Candler was acquired by a Delaware corporation also called “The Coca-Cola Company” (“the Company”), which also assumed the Georgia corporation’s outstanding contracts and liabilities. Thereafter, the Georgia corporation surrendered its charter. In 1920, a dispute arose between the Company and the parent bottlers as to the duration of the 1899 contract and the syrup pricing provisions thereunder. The Company sought relief from the fixed price contract and proposed a fluctuating price tied to the cost of manufacture of the syrup. The parent bottlers refused to enter into negotiations to amend the contract until the Company provided itemized information concerning the cost of manufacturing the syrup. The Company refused to disclose cost information in sufficient detail, and the parent bottlers rejected the Company’s flexible pricing proposal. The Company responded by declaring its contracts with the parent bottlers terminated as of May 1, 1920. Asserting that the 1899 contract was perpetual, the Thomas and WhiteheadLupton Companies filed suit in Georgia state court to enjoin termination of their contracts. Six actual bottlers intervened in the litigation in support of the parent bottlers. A temporary restraining order was entered which prohibited the Company from selling Coca-Cola syrup to anyone other than the parent bottlers. The parent bottlers voluntarily dismissed the Georgia state court suit on May 20, 1920, and refiled suit in the United States District Court for the District of Delaware on June 1, 1920. On November 8,1920, the Delaware District Court, per Judge Morris, granted the parent bottlers’ motions for a preliminary injunction preventing the Company from terminating the 1899 contract. The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796 (D.Del.1920) (cited hereinafter as “Coke 1920 at _”). Judge Morris found that the 1899 contract was perpetual and that effect of the 1899 contract was conveyance to the parent bottlers of property rights necessary to the business of bottling Coca-Cola beverage. Id. While the Company’s appeal from the preliminary injunction grant was pending before the Third Circuit Court of Appeals, the Company and the parent bottlers entered into settlement agreements which the Delaware District Court formally incorporated as final judgments on October 4,1921 (the “Consent Decrees”). The 1921 Consent Decrees superseded the 1899 contract and governed the relationship between the Company and the parent bottlers. The settlement agreement between the Company and the Whitehead-Lupton Company was contingent upon the agreement of the actual bottlers in the WhiteheadLupton territory because the bottle contracts between the Whitehead-Lupton Company and its bottlers were perpetual. The contracts between the Thomas Company and its bottlers were two-year contracts, most of which had expired during the pend-ency of the 1920 litigation. Therefore, the settlement agreement between the Company and the Thomas Company was not contingent upon the consent of the bottlers in the Thomas territories. In 1921, the bottlers’ contracts in the Whitehead-Lupton territories were amended to conform to the Consent Decrees. At the same time, the Thomas Company entered into perpetual contracts conforming with the Consent Decrees with its bottlers. Between 1921 and 1975, the Company acquired and dissolved all of the parent and subparent bottlers and assumed their obligations under the 1921 contracts to the actual bottlers. The 1921 contracts and those later bottling contracts also based upon the Consent Decrees will be referred to hereinafter as the “unamended contracts.” The plaintiffs in C.A. No. 83-95 continue to operate under these unamended contracts and will be referred to as the “unamenders” or the “unamended bottlers.” It is the scope of the unamended contracts which is at issue in the C.A. No. 83-95. In 1978, the Company proposed an amendment to the contracts of the actual bottlers which, among other changes, would substitute a new pricing formula for the syrup using a “Sugar Element,” a “Base Element,” and the Consumer Price Index. The proposal also provided that the savings resulting from use of a sweetener other than sugar in the syrup would be passed through to the actual bottlers. The Company’s proposed amendment will be referred to hereinafter as the “1978 Amendment.” From 1978 until 1987, when the Company withdrew the proposed amendment, bottlers constituting 97% of the volume of the Coca-Cola bottling business signed the 1978 Amendment. Those bottlers who signed the 1978 Amendment will be referred to hereinafter as the “amenders” or “amended bottlers.” The Company withdrew the 1978 Amendment on May 1, 1987 after giving the remaining unamended bottlers four months’ prior notice of its intention to do so. The plaintiffs in C.A. No. 83-95 did not sign the 1978 Amendment. The plaintiffs in C.A. No. 83-120 are amended bottlers who signed the 1978 Amendment prior to its withdrawal. In January 1980, the Company started using high-fructose corn syrup (“HFCS” or “HFCS-55”) in place of granulated sugar made from cane or beets to sweeten the Coca-Cola syrup it sold to the bottlers. Originally HFCS constituted 50% of the sweetener used in the syrup. Eventually, the Company stopped using sugar altogether and HFCS constituted 100% of the sweetener. From 1980-1987 the Company supplied HFCS-sweetened syrup both to the amenders and the unamenders. The amenders received a “pass through” of the Company’s savings from using the cheaper HFCS sweetener pursuant to the 1978 Amendment. The Company continued to charge the unamenders a syrup price based upon the price of more expensive sugar pursuant to a formula set out in the pricing provisions of their unamended contracts. This action on the part of the Company prompted the Elizabethtown litigation, which was filed by the unamenders in 1981. On July 8, 1982, the Company introduced diet Coke, a beverage then sweetened with saccharin and currently sweetened with aspartame. The Company took the position that the syrup for diet Coke was not a syrup covered by the unamended contracts or the 1978 Amendment, and it charged all bottlers the same price for diet Coke that it charged for syrup for TaB, another saccharine-sweetened soft drink, provision of which was governed by a separate contract. The Company’s refusal to provide diet Coke syrup under the unamended contracts and the 1978 Amendment prompted the filings of C.A. Nos. 83-95 and 83-120. In response to the vociferous protests of the bottlers, the Company proposed a two-part negotiation process for determining how it would price diet Coke syrup. The first phase consisted of execution of a Temporary Amendment to the bottlers’ contracts which would govern the pricing of diet Coke pending a final agreement on a permanent arrangement. Paragraph 9 of the Temporary Amendment stipulates that “during the period this Agreement is in effect, the price of diet Coca-Cola shall be determined solely under this Agreement.” Both parties read this language as a waiver of damages in the event the Court finds that plaintiffs were entitled to receive diet Coke syrup pursuant to the unamended contracts and 1978 Amendment. When the Temporary Amendment was first introduced, plaintiffs refused to sign it. Following the failure of the plaintiffs’ motion for a preliminary injunction which would essentially have stricken the waiver provision from the Temporary Amendment, the plaintiffs began bottling and selling diet Coke under the Temporary Amendment. The second phase of the negotiation process resulted in the 1983 Amendment, which significantly changed the bottlers’ contracts. It covers the sale and pricing of sugar-free colas, caffeine-free versions of Coke, diet Coke, TaB, and other cola syrups, and existing and unknown future bottle syrups sold under the Coca-Cola trademark. The Company agreed to relinquish flexible pricing for TaB and diet Coke and to price all diet colas under a fixed formula in perpetuity. The Company withdrew the 1983 Amendment on May 1, 1987 after giving the bottlers four months’ prior notice of its intention to do so. Some, but not all, of the plaintiffs in this litigation have signed the 1983 Amendment. Those who have signed the 1983 Amendment seek past damages only. FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATED TO CIVIL ACTION NO. 83-95 FINDINGS OF FACT 1. Civil Action No. 83-95 involves the claims of the unamended bottlers that they are entitled to diet Coca-Cola syrup pursuant to the terms of their unamended contracts. 2. The unamenders originally sought relief for the Company’s alleged breach of their unamended contracts (Count One) and the 1921 Consent Decrees (Count Two), alleged trademark infringement and. dilution (Counts Three and Four), and alleged antitrust violations (Count Five). In diet Coke V, Judge Schwartz granted the Company’s motion for summary judgment on Counts Three, Four, and Five. Consequently, the only remaining issues before the Court are whether the Company has violated its obligations under the Consent Decrees as incorporated by the unamended contracts. 3. The following actual bottlers are plaintiffs in C.A. No. 83-95: COMPANY PRINCIPAL PLACE OF BUSINESS AND"''STATE OF INCORPORATION- Arkansas-Georgia Co., Inc. Nashville, Ark. Central Coca-Cola Bottling Co., Inc. Charlottesville, Va. Coca-Cola Bottling Co. of Dickinson Dickinson, N.D. Coca-Cola Bottling Co. of Elizabethtown, Inc. Elizabethtown, Ky. Coca-Cola Bottling Co. of Jamestown Jamestown, N.D. Kelford Coca-Cola Bottling Co., Inc. Kelford, N.C. Coca-Cola Bottling Co. of LaCrosse, Inc. LaCrosse, Wise. Las Cruces Coca-Cola Bottling Co. Las Cruces, N.M. Love Coca-Cola Bottling Co. Muskogee, Okla. Magnolia Coca-Cola Bottling Co., Inc. Magnolia, Ark. Marshall Coca-Cola Bottling Co. Marshall, Tex. Natchez Coca-Cola Bottling Co., Inc. Natchez, Miss. Plymouth Coca-Cola Bottling Co., Inc. Plymouth, N.C. COMPANY PRINCIPAL PLACE OF BUSINESS AND STATE OF INCORPORATION Sacramento Coca-Cola Bottling Co., Inc. Sacramento, Cal. Coca-Cola Bottling Co. (San Angelo) San Angelo, Tex. Coca-Cola Bottling Co. of Shelbyville, Inc. Shelbyville, Ky. The Coca-Cola Bottling Co. of Tuscon, Inc. Tucson, Ariz. Coca-Cola Bottling Co. of Tulsa, Inc. Tulsa, Okla. Coca-Cola Bottling Co. of Williston Williston, N.D. Wilmington Coca-Cola Bottling Works, Inc. Wilmington, N.C. Consolidated Pretrial Order at 16-17 (Dkt. 461). The Language of the Unamended Contracts 4. The unamender’s claim is based upon the language of paragraph FIRST of the unamended contracts: That the party of the first part [the parent bottler, now the Company] hereby assigns to the party of the second part [the actual bottler] the sole and exclusive right and license ... to use and vend bottled Coca-Cola, the trademark name Coca-Cola, and all labels and designs pertaining thereto, in connection with the product “Bottled Coca-Cola” in the territory hereinbefore described, and party of the first part agrees not to assign or transfer the right of usage of said name in said territory to any other party whatsoever; and said party of the first part agrees to obtain and furnish to party of the second part, and to obtain for the territory herein referred to, sufficient syrup for bottling purposes to meet the requirements of party of the second part in the territory herein described____ Nothing herein, however, shall give party of the second part any interest in the name Coca-Cola, labels, etc., except the right of usage in connection with Bottled Coca-Cola, nor shall this contract in any way interfere with the use of said name Coca-Cola, labels, etc., in connection with the fountain product of The Coca-Cola Company, it being understood and agreed that the use herewith given shall be confined to the bottled product, the names, labels, etc., in connection with the fountain product having been reserved by The Coca-Cola Company. 5. The Court must decide whether diet Coca-Cola falls within the scope of “Bottled Coca-Cola” as that term is used in paragraph FIRST. 6. The term “Bottled Coca-Cola” is not defined in the unamended contracts. 7. Paragraph 10 of the 1921 Consent Decrees states that the syrup which the Company was required to provide to the parent bottlers “is to be high grade standard Bottlers Coca-Cola Syrup and shall contain not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” 8. The syrup the actual bottlers contracted to receive from the parent bottlers is obviously the same syrup the parent bottlers contracted to receive from the Company. See Elizabethtown Opinion issued this date at Count I, ¶ 16. Consequently, the description of Bottlers Coca-Cola Syrup found in paragraph 10 of the Consent Decrees is incorporated into paragraph FIRST as the syrup to which plaintiffs are entitled. Consequently, the syrup which the Company must provide to the actual bottlers pursuant to the unamended contracts “is to be high grade standard Bottlers Coca-Cola Syrup and shall contain not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup” as described by paragraph 10 of the 1921 Consent Decrees. 9. The issue of coverage under the unamended contracts, therefore, is whether diet Coke is “high grade standard Bottlers Coca-Cola Syrup [that] contain[s] not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” 10. 5.32 pounds of sugar per gallon is the only ingredient of Coca-Cola Bottlers’ Syrup specified in either the unamended contracts or the Consent Decrees. 11. Paragraphs 6 and 7 of the Consent Decrees and paragraph FOURTH(d) of the unamended contracts set forth the pricing formula for the syrup to be provided pursuant to paragraph 10 of the Consent Decrees and paragraph FIRST of the unamended contracts (the “pricing provisions”). According to the pricing provisions, the unamended bottlers pay a base price of $1.30 per gallon when the price of sugar is less than or equal to 7c per pound. When the price of syrup is greater than 7 c per pound, the unamended bottlers pay an additional 6c for every lc increase in the price of sugar over 7c per pound. 12. Paragraph 10 serves a quality control function as well as a price protective function. See Coke III at 1402. In addition to describing the syrup covered, paragraph 10 prevents the Company from using less sugar or a cheaper sweetener to evade the sugar-based pricing provisions. 13. Because it is the only named ingredient and because it forms the basis of the pricing provisions, use of 5.32 pounds of sugar per gallon to sweeten the syrup is a fundamental assumption of the unamended contracts and the Consent Decrees. 14. In Coke III, Judge Schwartz defined the term “sugar” as it is used in paragraph 10 of the Consent Decrees to be “granulated sugar from cane or beet.” Coke III at 1391. This definition is binding on the Court and the parties in the diet Coke cases. Moreover, this was a ruling sought by the plaintiffs in the bench trial which resulted in the Coke III opinion. Although this Court informed both parties prior to the start of the 1990 bench trial in the diet Coke cases that it would be willing to reconsider Judge Schwartz’ ruling on the definition of sugar or to certify the Coke III ruling for immediate appeal, neither party took up the Court’s offer. See Transcript of Conference on October 31, 1989, Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Co., C.A. Nos. 81-48/87-398 JJF (Consolidated) (Dkt. 882). 15. Judge Schwartz also ruled in Coke III that high fructose corn syrup (HFCS) is not “sugar” for purposes of paragraph 10. 16. Diet Coke has always been sweetened with saccharin or aspartame. 17. Neither saccharin nor aspartame is “granulated sugar from cane or beet.” Consequently, neither saccharin nor aspartame may be considered “sugar” for purposes of paragraph 10 of the Consent Decrees. 18. Diet Coke has never been sweetened with “five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” 19. Diet Coke does not, therefore, contain the only ingredient of Coca-Cola Bottlers’ Syrup specified by either the Consent Decrees or the unamended contracts. 20. Plaintiffs argue that the term “Bottled Coca-Cola” is a “functional” term requiring the Company to provide plaintiffs with their requirements of syrup for any beverage denominated a “Coca-Cola.” They derive their argument from the language in paragraph FIRST conveying to them exclusive right of usage of the trademark on Bottled Coca-Cola within their respective geographic territories and from Judge Morris’ ruling in Coke 1920 that the Company in the 1899 contract conveyed to the parent bottlers all rights necessary to operate the bottling business, including good will and use of the trademark. 21. Plaintiffs interpret the language of paragraph FIRST and Coke 1920 to mean that they along with the Company are joint owners of the trademark “Coca-Cola” within their respective territories. Plaintiffs contend that this joint trademark ownership entitles them to purchase from the Company any beverage bearing the “Coca-Cola” trademark pursuant to the pricing terms of their unamended contracts. 22. The Company, on the other hand, strenuously argues that, as the sole registrant and as the only party entitled to enforce infringement and other trademark rights, it is the sole owner of the trademark. The Company interprets plaintiffs’ rights as limited to those of a user or licensee. 23. Plaintiffs contend that “as a result of their ownership interest in the Coca-Cola trademark, if the Company manufactures and sells a syrup to the bottlers that the bottlers are to sell using the Coca-Cola or Coke name, plaintiffs are entitled to purchase that syrup from the Company under the terms of their existing contracts.” Plaintiffs’ Proposed Findings of Fact and Conclusions of Law ¶ 573 at 140. Plaintiffs’ trademark-based rights are triggered by and limited to the use of the trademark on “Bottled Coca-Cola,” the product named by paragraph FIRST and defined by paragraph 10 of the Consent Decrees as incorporated by paragraph FIRST as “high grade standard Bottlers Coca-Cola Syrup [that] contain[s] not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” Consequently, plaintiffs’ right to receive and sell “Bottled Coca-Cola” defines the scope of their trademark rights and not vice-versa. Given this dependence, plaintiffs’ trademark-based rights do not define the scope of their right to bottle and sell “Bottled Coca-Cola.” 24. Plaintiffs go too far when they assert: “Plaintiffs[’] trademark rights supplement, and are independent of, plaintiffs’ perpetual contract rights to receive any syrup using the Coca-Cola name.” Plaintiffs’ Proposed Findings of Fact and Conclusions of Law it 571 at 139 (emphasis added). 25. The plaiti language of paragraph FIRST, the very language relied upon by plaintiffs, supports the proposition that plaintiffs’ trademark rights — whatever they may be — are part and parcel of their right to receive syrup and sell the beverage “Bottled Coca-Cola” in their territories: That the party of the first part [the parent bottler, now the Company] hereby assigns to the party of the second part [the actual bottler] the sole and exclusive right and license ... to use and vend bottled Coca-Cola, the trademark name Coca-Cola, and all labels and designs pertaining thereto, in connection with the product “Bottled Coca-Cola” in the territory hereinbefore described, and party of the first part agrees not to assign or transfer the right of usage of said name in said territory to any other party whatsoever; ____ Nothing herein, however, shall give party of the second part any interest in the name Coca-Cola, labels, etc., except the right of usage in connection with Bottled Coca-Cola,____ (emphasis added). 26. Whatever the trademark interest of the bottlers may be or may one day be determined to be, the Court is convinced that it is substantially less than the plaintiffs assert, it is not a proprietary interest, and it is more in the nature of a beneficial interest attached to plaintiffs’ contractual right to bottle and sell “Bottled Coca-Cola” syrup. The plaintiffs’ trademark-based rights, therefore, do not define their rights concerning “Bottled Coca-Cola” and do not shed light on whether diet Coke is “Bottled Coca-Cola” for purposes of the unamended contracts. Course of Performance Formula Changes: 1921-1980 27. The Company changed the formulation of the syrup provided to the bottlers pursuant to the terms of the unamended contracts a number of times between 1921 and 1980. These formula changes did not result in multiple syrups offered simultaneously under the terms of the unamended contracts. Instead, each time the Company changed the syrup, the reformulated syrup was offered in place of the previous version. 28. At some point after 1921 (the exact date is unknown), the amount of sugar in the syrup offered the bottlers under the unamended contracts was increased from approximately 5.32 pounds to 5.6534 pounds per gallon of syrup. PX1581 at 6; See diet Coke I at 1131 n. 31. 29. In 1941, the Company began to sweeten the syrup with sucrose from beets as well as sucrose from cane. DX641; Coke III at 1403 & 1406. The bottlers were aware of but did not object to the Company’s use of beet sugar. Coke III at 1403. Judge Schwartz ruled in Coke III, a ruling which plaintiffs have not contested, that use of beet sugar was not contemplated by the Consent Decrees, and as a consequence, the bottlers had a right to object to its use. Id. Judge Schwartz held that the bottlers waived their right to object to the use of beet sugar when they failed to object. This waiver resulted in an expansion of the definition of sugar in paragraph 10 to include sugar from beets as well as from cane. Id. The beet sugar waiver did not open the door to use in the syrup of sweeteners other than sugar from cane or beet. Id. 30. After World War II, there were small changes in the quantity of caffeine in the syrup. See diet Coke I at 1131 n. 31. 31. In 1974, the amount of caffeine in the syrup was decreased from 3.15 to 2.36 grams. See diet Coke I at 1131 n. 31. Introduction of TaB 32. As stated above, the formula changes prior to 1980 did not result in multiple syrups and were instead reformulations intended to replace previous versions of the syrup sold to the bottlers pursuant to their unamended contracts. In 1963, however, the Company introduced TaB, an additional cola syrup. PX1212; PX1213. TaB was sweetened with saccharin. Besides the sweetener, other material differences in ingredients existed between TaB and the syrup then sold to the bottlers pursuant to their unamended contracts. PX1213 at 841793. 33. While TaB may be a diet cola, it was never called a “Coca-Cola” and has not been sold under the Coca-Cola trademark. Tr. 1615-16 (Dyson). 34. When TaB was introduced, the Thomas Company parent bottler (which remained in existence until 1975) took the position that TaB was a form of Coca-Cola. PX1211 at 841798; PX1210 at 841759. 35. The Thomas Company and The Coca-Cola Company resolved the dispute by agreeing that the Company would supply TaB syrup under a separate ten-year term contract. The TaB contract contained an explicit reservation of rights clause precluding reliance on the contractual treatment of TaB as a basis for interpreting the unamended contracts: Neither the execution or the performance of this contract ... shall (a) affect in any manner either Party’s rights, or responsibilities to or covenants with the other Party, under [the unamended contracts and 1921 Consent Decrees], (b) be construed as an interpretation or to alter, amend or change the Contracts outstanding regarding the bottling and sale of Coca-Cola; (c) be used to support or dispute any contention that any other product, whether like “TaB” or not, is or is not a form of “Coca-Cola”____ DX55; see also PX1660 (the bottlers’ TaB contracts with the Thomas Company). Use of HFCS-55 in Place of Sugar 36. In January 1980, the Company once again reformulated the syrup received by the bottlers pursuant to their unamended contracts. Like the syrup formula changes from 1921-1980 described supra, this syrup reformulation was intended by the Company to replace the previous version of the syrup. Unlike the previous syrup changes, however, this reformulation touched upon the requirement in the unamended contracts that the syrup contain not less than 5.32 pounds of sugar per gallon. In January 1980, the Company began to substitute HFCS-55, a high fructose corn sweetener which contains no sugar from cane or beet, for 50% of the sugar in the syrup received by the bottler. This reduced the amount of sugar in the syrup to less than 5.32 pounds per gallon. Admitted Facts ¶ 171 at 89. The Company stipulated in response to plaintiffs’ Second Requests For Admissions No. 61(a) that this syrup was Coca-Cola Bottler’s syrup covered by the unamended contract and the 1978 Amendment, diet Coke VI at 99. 37. The percentage of HFCS-55 to sugar in the syrup was increased to 75%-25% in February 1984. PX1807. The Company stipulated in response to plaintiffs’ Second Requests For Admissions No. 61(b) that this syrup was Coca-Cola Bottler’s syrup covered by the unamended contract and the 1978 Amendment, diet Coke VI at 99. 38. In November 1984, the Company began sweetening the syrup with 100% HFCS-55 and no “sugar.” The Company stipulated in response to plaintiffs’ Second Requests For Admissions No. 61(c) that this syrup was Coca-Cola Bottler’s syrup covered by the unamended contract and the 1978 Amendment, diet Coke VI at 99. 39. From 1980-1987 the Company provided the unamended bottlers a syrup sweetened with HFCS-55 but charged them a price based upon the market price of sugar pursuant to the pricing provisions of their unamended contracts. See the Opinion issued this date in Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Company, C.A. Nos. 81-48/87-398-JJF Consolidated. 40. Unlike their acquiescence to the use of beet sugar, the unamended bottlers protested the use of HFCS-55 in the syrup. In February 1981, the unamended bottlers, including the plaintiffs in this action, filed suit against the Company as a direct result of the Company’s formula changes. In their complaint, the unamended bottlers in part demanded: that The Coca-Cola Company supply the plaintiff and other Unamended Bottlers Coca-Cola Bottlers’ Syrup containing with not less than the 5.32 pounds of granulated sugar required in paragraph 10 of the Final Decrees, and not syrup made with HFCS 55, or, alternatively, that The Coca-Cola Company refund and pass on to the Unamended Bottlers the savings achieved by The Coca-Cola Company from the substitution of HFCS 55 for ... sugar in the syrup. Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Company, C.A. Nos. 81-48/87-398-JJF Consolidated, Dkt. 1 at ¶ 45. 41. In Coke III, Judge Schwartz agreed with plaintiffs’ assertions regarding the use of sweeteners other than sugar in the syrup: Now that a fully acceptable substitute [sweetener] has been developed, and is being used in competing brands, it is in the interest of both the Company and the bottlers to see that substitute in place of sugar. The effect of paragraph 10’s sugar requirement is to require the Company to secure the consent of the bottlers before that change is made. Coke III at 1403. Following Judge Schwartz’ ruling in Coke III and his denial of its motion to amend the ruling in Coke IV, the Company began supplying the unamended bottlers who refused to sign the 1978 or 1983 Amendments and who refused to waive their right to potential damages for overcharge during pendency of the Elizabethtown litigation with syrup sweetened 100% with sugar. 42. Judge Schwartz’ finding that the effect of the requirement of 5.32 pounds of sugar per gallon of syrup in paragraph 10 of the Consent Decrees was to require the Company to obtain the permission of the unamended bottlers prior to using a sweetener other than 5.32 pounds of sugar reconciled the treatment of beet sugar under the unamended contracts with the treatment of HFCS-55. By failing to object to the use of beet sugar, plaintiffs had tacitly consented to its use and the definition of “sugar” in paragraph 10 was accordingly modified to include sugar from beets. No such tacit consent or modification of paragraph 10 had been given for the use of HFCS-55. Introducing diet Coke 43. The Company introduced diet Coke on July 8, 1982. 44. Diet Coke was sweetened with saccharin when it was introduced. When aspartame was approved for use in soft drinks, the Company began to sweeten diet Coke with aspartame. 45. Neither aspartame nor saccharin is sugar within the meaning of paragraph 10. 46. In diet Coke IV, Judge Schwartz ruled on sanctions against the Company for its refusal to produce in discovery the secret formulae for Coca-Cola and diet Coke. Judge Schwartz entered a Preclusion Order which gives plaintiffs the benefit of every inference favorable to their position which production of the formulae might have yielded. Pursuant to the Preclusion Order entered by Judge Schwartz in diet Coke IV, the Court must find that the formula for diet Coke, except for the sweetener, is identical to the formulae for both the syrup offered to the bottlers pursuant to their unamended contracts prior to April 1985 (which is now marketed as “Coca-Cola Classic”) and to the syrup currently offered under their unamended contracts as Bottled Coca-Cola (“new Coke”). Preclusion Order, diet Coke IV at 374 ¶ 2(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”); id. at 374 112(f) (“99% of the total number of ingredients in diet Coke and old Coke, and in diet Coke and new Coke, are the same”); id. at 374 P 2(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”); id. at 375 112(i)(l) (“diet Coca-Cola syrup contains the identical quantities of Merchandise 7X, Merchandise No. 5, extract of vanilla, and caffeine as the syrup which defendant formulated and sold to plaintiffs and other bottlers as ‘Coca-Cola Bottler’s Syrup’ during the period from January 27, 1980 through the end of April 1985 (which is the same syrup that defendant is now selling to plaintiffs under the name “Coca-Cola Classic” syrup) and that defendant used these ingredients in diet Coke to match the taste, aroma, mouthfeel, and all other organoleptic properties of the bottled Coca-Cola as it existed during that period”); id. at 375 112(1)(3) (“differences in formula, chemical composition, ingredient composition, taste, and other physical organoleptic properties between diet Coke syrup and the syrup which defendant sold as Coca-Cola Bottler’s Syrup between 1980 and April 1985 (and which defendant is now selling as Coca-Cola Classic syrup) are much less significant, much fewer in number, and much less noticeable to the consumer than: (i) those differences between Coca-Cola Classic syrup and the earlier versions of ‘Coca-Cola Bottler’s Syrup’ that the defendant had formulated and sold to bottlers under their contracts between 1899 and the current date; (ii) those differences between the syrup for new Coca-Cola which was introduced by defendant in April 1985 and all previous syrups which the defendant has sold to bottlers as ‘Coca-Cola Bottler’s Syrup’ under their contracts; (iii) those differences (except taste and physical organoleptic properties) between the syrup for caffeine-free Coca-Cola and the syrup for Coca-Cola Classic; and (iv) those differences between some of the versions of Coca-Cola Bottler’s syrup manufactured and sold by defendant between 1899 and 1980, and other versions of Coca-Cola Bottler’s Syrup sold by defendant to bottlers as ‘Coca-Cola Bottler’s Syrup’ during that period”); id. at 376 ¶ 2(n) (“except for the different sweeteners, the bottle syrup sold by defendant to the bottlers in the United States for the production of bottled diet Coke contains precisely the same ingredients, in identity, number, and quantity, as the bottle syrup sold by defendant to the bottlers in the United States for the production of: (1) Coca-Cola (made according to the new formula introduced in April, 1985); and/or (2) Coca-Cola Classic (made according to the original formula); and/or (3) caffeine-free Coca-Cola”); id. at 376 ¶ 2(p) (“the secret ingredients in Coca-Cola and/or Coca-Cola Classic are identical to the secret ingredients in diet Coke and are used in the same relative quantities”). 47. Unlike the reformulation of the syrup to use HFCS-55 in place of sugar, the Company intended to offer diet Coke as an additional syrup. The Company did not offer diet Coke to the bottlers under the terms of their unamended contracts. Rather, the Company offered diet Coke under terms similar to the flexibly-priced TaB. Admitted Summary Judgment Facts ¶ 132 at 151. Tr. 1462-65; Tr. 1199; Tr. 1205-06. 48. The Bottlers Association, of which all plaintiffs were members, formed an Ad Hoe Committee to negotiate the contractual issues related to diet Coke. Tr. 659; Tr. 1200; DX1623 at 1-2. The Ad Hoc Committee included large and small bottlers, urban and rural bottlers, and unamended and amended bottlers. DX1623 at 1-2; Tr. 1202; Tr. 745. 49. Although the Ad Hoc Committee negotiated on behalf of the bottlers, both the Company and the bottlers recognized that each bottler individually would have to reach agreement with the Company as to the terms under which he would receive diet Coke. DX2416 at SH000706; Tr. 658; Tr. 749-50. 50. The Company offered to negotiate diet Coke pricing terms in two phases. Phase I involved a so-called “Temporary Amendment” which would govern until a permanent pricing scheme could be negotiated. The Temporary Amendment established a formula pricing mechanism for diet Coke tied to the existing “base element” of TaB plus sweetener costs and an escalator based on the Consumer Price Index. DX166(b). 51. The Temporary Amendment contains the following language: 9. It being the intent and purpose of the Bottler and the Company that this Agreement shall in no way prejudice nor otherwise affect their respective rights and obligations under the Bottle Contract or from any other source nor their respective legal or equitable claims, the Bottler and the Company expressly stipulate that this Agreement shall have no such effect. It is further agreed, however, that during the period this Agreement is in effect, the price of diet Coca-Cola shall be determined solely under this agreement. DX166(b). 52. Plaintiffs at first refused to sign the Temporary Amendment, Admitted Summary Judgment Facts II 51 at 150, and filed suit in this Court in February 1983 in part seeking a preliminary injunction allowing them to receive diet Coke under an amended version of the Temporary Amendment deleting paragraph 9 quoted above. 53. Judge Schwartz denied the motion for a preliminary injunction in diet Coke I. 54. After Judge Schwartz denied the preliminary injunction motion, plaintiffs signed the Temporary Amendment. Admitted Summary Judgment Facts if 54 at 140. 55. Phase II of the negotiations resulted in the “1983 Amendment,” which covers the sale and pricing of sugar-free colas, caffeine-free Coca-Cola, diet Coke and TaB, other cola syrups, and existing and unknown future bottle syrups sold under the Coca-Cola trademark. Admitted Summary Judgment Facts ¶ 50 at 140. 56. The 1983 Amendment was withdrawn in 1987 after the Company gave the bottlers four months’ notice that it intended to withdraw the amendment. Those bottlers who have not signed the 1983 Amendment continue to receive diet Coke syrup under the terms of the Temporary Amendment. Introduction of Caffeine-Free Coca-Cola and Caffeine-Free diet Coca-Cola 57. The Company introduced caffeine-free Coca-Cola and caffeine-free diet Coke in April 1983. Admitted Facts 11186 at 92. Neither product was foreseen in 1921 or in 1978. Admitted Facts 1111187-88 at 92. Caffeine-free Coca-Cola and caffeine-free diet Coke were not intended to replace the existing versions of Coca-Cola and diet Coke. Rather, the Company offered them as additional syrups. 58. The syrups for both caffeine-free Coca-Cola and caffeine-free diet Coke have always contained less than 5.32 pounds of sugar per gallon. 59. Pursuant to the Preclusion Order, the Court must find that the formula for diet Coke is more like the formula for the syrup being sold to plaintiffs under the unamended contracts in April 1983 (now sold as “Classic Coca-Cola”) and the formula for new Coke (sold to plaintiffs as Bottled Coca-Cola since 1985) than is the formula for caffeine-free Coca-Cola. Preclusion Order Diet Coke IV at 374 ¶ 2(c) & (d). 60. “[C]affeine-free Coca-Cola syrup is the same from the standpoint of chemical composition, ingredient composition, and formulae as the syrup which the defendant was selling as ‘Coca-Cola Bottler’s Syrup’ during the period 1980 through April 1985 (and which defendant is now selling as Coca-Cola Classic syrup), notwithstanding the fact that the caffeine-free Coca-Cola syrup does not contain (1) kola nut extract, (2) caffeine, (3) extract of vanilla, all of which have been ingredients in every previous version of ‘Coca-Cola Bottler’s syrup’ manufactured and sold by defendant to the bottlers under their contracts from 1899 to the current date, and (4) that caffeine-free Coke uses a modified form of Merchandise 7X.” Id. at 375 112(k). 61. Except for different sweeteners, diet Coke is exactly the same as caffeine-free Coca-Cola. Id. at 376 ¶ 2(n)(3). diet Coke was intended to duplicate the taste and appearance of caffeine-free Coca-Cola. Id. at 376 112(o)(3). 62. The Company entered into letter agreements with the bottlers providing that: The terms of the BOTTLER’S BOTTLE CONTRACT [either the unamended contracts of the 1978 Amendment] ... shall be applicable to the sale by the Company to the Bottler of syrup for the manufacture of Caffeine Free Coca-Cola, and the bottler and the Company will be entitled to all the rights and subject to all the obligations contained in the Bottler’s Contract, as hereby amended, as if Caffeine Free Coca-Cola were included in the Bottler’s Contract. CX35C. 63. The letter agreement applies to caffeine-free Coca-Cola, but not to caffeine-free diet Coke. 64. The letter agreement also contains a waiver clause similar to that in the TaB contract: It being the intent and purpose of the Bottler and the Company that this letter and the agreement set out herein shall in no way prejudice or otherwise affect their respective rights and obligations under the Bottler’s Contract ... or from any other source, or the respective legal or equitable claims, the Bottler and the Company expressly stipulate that this letter and the agreement contained herein shall have no such effect. CX35C 65. In response to plaintiffs’ Second Requests for Admissions No. 24 served on defendant November 19, 1986, the Company replied: [T]he Company is willing to stipulate solely for purposes of this litigation if the plaintiffs so desire, that the bottle syrup for caffeine-free Coca-Cola is Coca-Cola Bottle Syrup within the meaning of the unamended Coca-Cola Bottle Contract and the 1978 Amendment. diet Coke VI at 100. Introduction of Cherry Coke 66. The Company introduced Cherry Coca-Cola and diet Cherry Coke in 1985. Additional Admitted Facts 1170 at 129. These products were not foreseen in 1921 or 1978. Additional Admitted Facts 1141 at 125. 67. The syrups for both Cherry Coke and diet Cherry Coke have always contained less than 5.32 pounds of sugar per gallon. 68. As with caffeine-free Coca-Cola, the parties entered into separate letter agreements governing Cherry Coke, but not diet Cherry Coke. The letter agreements for Cherry Coke likewise provided that Cherry Coke would be supplied pursuant to the unamended contract or 1978 Amendment (whichever the particular bottler operated under) and contained the same reservation of rights paragraph quoted above in association with the caffeine-free Coca-Cola letter agreements. CX35E. 69. In response to plaintiffs’ Second Requests for Admissions No. 25 served on defendant November 19, 1986, the Company replied: [T]he Company is willing to stipulate solely for the purposes of this litigation, if the plaintiffs so desire, that the bottle syrup for Cherry Coke is Coca-Cola Bottle Syrup within the meaning of the unamended Coca-Cola Bottle Contract and the 1978 Amendment. diet Coke VI at 100. Introduction of new Coke 70. The Company introduced new Coke in April 1985. Like the pre-1980 formula changes and the substitution of HFCS-55 for sugar in the syrup, new Coke was not originally intended as an additional syrup, but rather was intended to replace the previous version of Bottled Coca-Cola syrup sold to plaintiffs pursuant to the unamended contracts and the 1978 Amendment. Additional Admitted Facts II 70 at 129; Admitted Summary Judgment Facts 1111234-35 at 172. 71. New Coke has always been sweetened with HFCS and has always contained less than 5.32 pounds of sugar. 72. Pursuant to the Preclusion Order, the Court must find: [T]he syrup for “new Coca-Cola,” which was introduced by the defendant in April, 1985, is “Coca-Cola Bottler’s Syrup” and is encompassed by plaintiffs’ contracts with the defendant, despite the fact that the syrup for new Coca-Cola is 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 the version of “Coca-Cola Bottler’s Syrup” that was being produced by the defendant and supplied to the plaintiffs under their contracts immediately prior to the introduction of new Coca-Cola syrup; and that 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 and is materially different from an ingredient standpoint from any of those earlier syrups. The ingredient differences between new Coca-Cola syrup and the version of Coca-Cola bottler’s syrup which the defendant was selling to plaintiffs as “Coca-Cola Bottler’s Syrup” from 1980 through April 1985, and which was replaced by new Coca-Cola, are major and material and include the following: (1) new Coca-Cola syrup is produced according to a new formula that is not a modification, extension, or improvement of the original Coca-Cola formula; (2) new Coca-Cola does not use Merchandise 7X, the emulsion of secret ingredients which is the core of and the most significant part of the original Coca-Cola formula, and which was used without change by defendant in every previous syrup produced by defendant that has used the Coca-Cola or Coke trademarks since the formula for Coca-Cola was first developed in 1886, including diet Coca-Cola, but excluding caffeine-free Coca-Cola, which contains a modified form of Merchandise 7X; (3) none of the secret ingredients in new Coca-Cola are common with the secret ingredients in Merchandise 7X or Merchandise No. 5; and (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 now sells as the syrup for “Coca-Cola Classic”), and all of which are major, significant, and give new Coke a significantly different taste. diet Coke IV at 376 11 2(m). 73. Because of unfavorable market reaction to the formula change, the Company reintroduced the previous version of the formula under the name “Coca-Cola Classic” or “Classic Coke.” Admitted Summary Judgment Facts II234 at 172. Admitted Summary Judgment Facts II234 at 172. 74. Coca-Cola Classic did not replace the version of syrup (new Coke) then being sold to the bottlers pursuant to their contracts as syrup for Bottled Coca-Cola. Rather, the syrup for Coca-Cola Classic was offered as an additional syrup. 75. The Company by letter informed the bottlers that it would make syrup for Coca-Cola Classic available to them pursuant to the terms of their unamended contracts or the 1978 Amendment (whichever they operated under). The Company did so with the understanding that the contract rights of all parties would be reserved: [T]he Company will fill orders for Coca-Cola [C]lassic from any Coca-Cola Bottler without additional contractual agreement or exchange of correspondence at this time. We may well take the position in the future that some clarification of our respective rights and obligations is appropriate. Your purchase of syrup from us under this letter, however, will not be claimed by us to have prejudiced in any way your right to assert any contractual position you think is appropriate in the future, nor do we intend to be prejudiced by such sales in our right to assert any contractual position we think appropriate. DX651. 76. In response to plaintiffs’ Second Requests for Admissions No. 23 and 61(d), the Company admitted that the syrup for new Coke was Coca-Cola Bottler’s Syrup covered by the unamended contracts even though it was sweetened 100% with HFCS and contained no “sugar.” The Company also admitted that the syrup for new Coke was covered by the 1978 Amendment, diet Coke VI at 99. 77. In response to plaintiffs’ Second Requests for Admissions No. 61(e), the Company admitted that the syrup for Coca-Cola Classic was Coca-Cola Bottler’s Syrup covered by the unamended contracts even though it was sweetened 100% with HFCS and contained no “sugar.” Id. Plaintiffs’ Course of Performance 78. Plaintiffs assert that the syrups for new Coke, Coca-Cola Classic, caffeine-free Coca-Cola, Cherry Coke, diet Coke, caffeine-free diet Coke, and diet Cherry Coke comprise a “family” of Coca-Cola syrups which the Company is required to provide to plaintiffs under the terms of their unamended contracts. 79. Plaintiffs assert that the Company’s responses to their Second Requests for Admissions that the HFCS-sweetened versions of the syrup and the syrups for new Coke, Coca-Cola Classic, caffeine-free Coca-Cola and Cherry Coke are all Coca-Cola Bottler’s Syrup covered by the unamended contracts establish that the scope of the unamended contracts includes more than a single syrup and syrups sweetened with sweeteners other than 5.32 pounds of sugar per gallon. 80. In support of their contention that the syrup for diet Coke should be included within the “family,” plaintiffs point to the formulaic similarity established by the Preclusion Order and to references in the internal Company literature referring to diet Coke as a “son” of Coca-Cola. CX120 at 842137 & 842139; PX1353 at 845583; PX1608 at 862989. 81. Plaintiffs’ construction of their unamended contracts taken to its logical conclusion would mean that the seven syrups currently bearing the Coca-Cola trademark — new Coke, Coca-Cola Classic, caffeine-free Coca-Cola, Cherry Coke, diet Coke, caffeine-free diet Coke, and diet Cherry Coke — as well as any other syrups which may be developed in the future and which may bear the trademark, for example, “Coca-Cola Root Beer” or “Orange Coke,” would be syrup for Bottled Coca-Cola and covered by the terms of the unamended contracts. 82. Plaintiffs’ course of performance, however, reveals that many of the plaintiffs do not treat the seven syrups currently bearing the trademark as subject to all of the terms of the unamended contracts. 83. Paragraph SIXTH of the unamended contracts provides: Failure of the party of the second part [the actual bottler] to properly and vigorously push the sale of bottled Coca-Cola shall be deemed a violation of this contract, and party of the first part [the parent bottler, now the Company] shall have the option to terminate same, by written notice, addressed to the last known place of business of party of the second part. 84. Plaintiffs appear to view the Company’s obligation to supply syrup for Bottled Coca-Cola pursuant to paragraph FIRST much more broadly than they view their own obligation “to properly and vigorously push” the sale of Bottled Coca-Cola pursuant to paragraph SIXTH. While the plaintiffs assert the Company is required to make available to them pursuant to the pricing terms of the unamended contracts any syrup sold under the “Coca-Cola” trademark, many of the plaintiffs assert that they are not required to purchase from the Company and sell in their territories every syrup bearing the trademark and offered by the Company. E.g., DX2428 at 55-62 (Deposition of Walker Lee Christian, representative of the Central bottler) (the Company must make available all products bearing the trademark, but bottler has the right to refuse to introduce a product bearing the trademark and may choose which products it markets); DX2429 at 101 (Deposition of Edward R. Cody, representative of the Williston bottler) (bottler has no obligation to take on a new product bearing the trademark); DX2434 at 16-20 (Deposition of Todd J. Herauf, representative of the Dickinson bottler) (the Company must make available all trademark-bearing products, but the bottler is not obligated to take them all and can decide which products are sufficiently profitable to offer in the territory); DX2443 at 50-53 (Deposition of William L. Mayo, representative of the Plymouth bottler) (bottler has the option to choose among the products bearing the trademark which sells best in his area, for example, this bottler does not carry caffeine-free Coca-Cola); DX2447 at 47 (Deposition of Robert E. Patterson, representative of the Tulsa bottler) (bottler has the option of dropping a trademark-bearing product); DX2456 at 27 (Deposition of Kenneth R. Wilson, representative of the Arkansas-Georgia bottler) (bottlers’ assessment of the demand for a trademark-bearing product in his territory is the sole determinant of whether the Company is obligated to supply and the bottler is obligated to sell that product). 85. The Jamestown bottler stated that the bottlers are not required to push vigorously six of the seven alleged members of the “family” of Coca-Cola which the bottlers assert the Company must supply pursuant to paragraph FIRST and the bottlers can satisfy their obligations under paragraph SIXTH by carrying only Coca-Cola Classic. DX2479 at 140 (Deposition of John R. Bern