This is a Response to a sur reply in a Lanham Act false advertising case in SDNY. Plaintiff, Merck Eprova, claimed that my client, Gnosis, S.p.A., caused an independent GRAS panel of experts to change the nomenclature in their report to better its position in the litigation. Merck claimed that the independent panel started off using Merck's nomenclature but changed it to be more closely aligned with Gnosis' litigation position regarding nomenclature. A couple of major problems:
-First, the independent panel admitted that the nomenclature was confusing. Merck's burden in the case is to prove that the nomenclature is unambiguous.
-Second, the original nomenclature was not consistently Merck's; it was all over the board, showing confusion not clarity.
-Third, the nomenclature did not go from Merck's to Gnosis; it went from a mixture to the internationally recognized International Union of Pure and Applied Chemistry ("IUPAC") nomenclature.
-Fourth - and most importantly - Merck is now accusing Gnosis of changing the nomenclature from Merck's to the IUPAC's, which Merck admits is "more closely aligned" with the nomenclature Gnosis used and Merck claims is literally false.
Question: How can the nomenclature be "more closely aligned" with the worldwide standard and be "literally" false?
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