major beer battle turns on Mead (Johnson)

Long post, lots of stuff to cover in this opinion.
MillerCoors, LLC v. Anheuser-Busch Cos., No. 19-cv-218-wmc
(W.D. Wisc. May 24, 2019)
There’s an apocryphal ad story about a cannery stuck with
unmarketable pale salmon that turned its disadvantage around by labeling the
product as “Guaranteed not to turn pink in the can!” (The competitors supposedly
responded by advertising that their products contained no bleach.)  The point is that the advertising context
itself conveys a lot of meaning: in particular, aspects of one’s own product
that one presents proudly are good, while aspects of the competition’s product
that one brays loudly about are bad, even (or especially) if the consumer has
no other information about how to identify good/bad characteristics.  AB took advantage of this standard feature of
human communication, and got sued for it.
There’s a lot of detail here (and really good lawyering on
both sides), but: AB started an ad campaign highlighting MC’s use of corn syrup
in brewing Miller Lite and Coors Lite, whereas AB uses rice in Bud Light (but
corn syrup in various other AB beverages). 
MC sued for false advertising and trademark dilution; the court granted
a preliminary injunction limited to ads that indicated in some way that Miller
Lite and Coors Lite actually contained corn syrup when consumers drank it,
specifically: (1) Bud Light contains “100% less corn syrup”; (2) Bud Light in
direct reference to “no corn syrup” without any reference to “brewed with,”
“made with” or “uses”; (3) Miller Lite and/or Coors Light and “corn syrup”
without including any reference to “brewed with,” “made with” or “uses”; and
(4) describing “corn syrup” as an ingredient “in” the finished product.  In addition, “the court would strongly
encourage advance clearance before adopting any phrase or creative license in
an attempt to maneuver around the prohibitions.”
The most disappointing part of the opinion for me was the
court’s refusal to dismiss the trademark dilution claim because fair use is an
affirmative defense. First, that’s new law as far as I’m aware, and given the
First Amendment implications of applying dilution law to comparative
advertising, it’s not a well-justified decision.  (The Ninth Circuit has held that in nominative
fair use cases (which this is), the defendant’s only burden is to show that the
use is referential (which MC pled), after which the burden shifts back to the
plaintiff to show lack of entitlement to the defense.) Second, even so, the
complaint clearly pled itself out of court; there is no way that this is not
comparative advertising/nominative fair use.
On to the main event: The yeast that makes beer needs a
nutrient substrate with sugars.  Sugars
can come from malt, “or from a combination of malt and starchy grains like corn
or rice.” The parties agreed that the sugar source relates to style and taste
characteristics, though cost may also be a factor: corn syrup is cheaper than
rice.  “There is no meaningful difference
between using rice or corn syrup as an ingredient in terms of health or safety
of the resulting beer product.” 
Fermentation “converts the corn syrup sugars into ethanol, flavors,
aromas, carbon dioxide, heat and a next generation of yeast cells, leaving a
small amount of residual sugars.” No corn syrup remains in the Coors Light and
Miller Lite products at the end of fermentation, and none is added.
Nonetheless, AB launched a huge ad campaign featuring claims
that Miller Lite and Coors Light are “made with” or “brewed with” corn syrup. Here’s
one Super Bowl ad
.  Suffice it to say
that the gist—central to the ads and much repeated—is that Bud Light doesn’t
use corn syrup and Miller Lite/Coors Light do (“made with” and “brewed with”
are frequently repeated).  AB billboards
touted “100% less corn syrup” than the two competitors. An AB Twitter account posted
an image displaying a Miller Lite can next to a Karo corn syrup bottle as if in
a family portrait, and a Facebook user posted a similar image, referencing the

Karo Lite (syrup) and Miller Lite “family portrait”

user-generated content matching BL/ML with ears of corn and Aunt Jemima syrup
Another ad showed the following frames:

“Corn syrup”/”No corn syrup” by bottles of the parties’ products

Another ad mocked MC for complaining and an AB character suggested
“also imitating us by putting an ingredients label on your packaging. People
want to know what ingredients are in their beer. But what do I know? I’m just
the king of a kingdom that doesn’t brew beer with corn syrup.”
Beer Business Daily reported that according to Andy Goeler, AB’s
head of marketing for Bud Light, “[Anheuser-Busch] did focus-group the heck out
of this [Special Delivery] ad, and found consumers generally don’t
differentiate between high fructose corn syrup and corn syrup, and that it is a
major triggering point in choosing brands to purchase, particularly among
women.”  In another interview, in response
to the question, “What is wrong with corn syrup?,” Goeler responded: “People
started to react to corn syrup, they started to react to no preservatives, and
they started to react to no artificial flavors. There are things that consumers
on their own had perceptions — for whatever reason — that there were ingredients
they preferred not to consume if they didn’t have to.”  The interviewer noted that AB focused on corn
syrup and not preservatives and asked why Goeler thought “consumers see corn
syrup as something they don’t want.” He called it “an ingredient some prefer
not to consume is the simple answer. . . . [S]ome consumers — for their own
personal reasons — have concluded that they prefer not putting something like
corn syrup, if they had a choice, into their body.” 
Though this is in one sense an ordinary bullshit nonanswer,
it contains the key conflation at issue here: treating the brewing substrate as
if it were what consumers “put[] … into their body,” which it is not.  Goeler’s answer recognizes the obvious fact
that consumers have no particular reason to think about the distinction between
beginning ingredients and the stuff in the can, and the ads are self-evidently
encouraging consumers to consider the stuff in the can as if it still contained
corn syrup, which is a reason to buy Bud Light instead.  What would be the point of the ads
otherwise?  [See discussion of Grice
below.]  Anyway, in another interview,
Goeler stated that AB would continue to focus on “ingredient transparency,” and
AB’s senior director of corporation communications echoed this, concluding that
“Knowing what is and isn’t in your beer — whether you paid for it or not —
can only be good for the beer industry overall.”  Again: there’s no corn syrup in MC beer, but of course that’s the
message; the use of “made with” and “brewed with” does not tell consumers
MC submitted a survey in which the control ad was the same as
the test ad, but with an added, prominent disclaimer: “While corn syrup is used
during the brewing of Miller Lite and Coors Light, there is NO corn syrup in
the Miller Lite and Coors Light you drink.” Its expert concluded that “61
percent of respondents who saw the test stimulus believe that corn syrup is in
the Miller Lite and/or Coors Light you drink,” compared to 26 percent in the
control, for 35% net confusion. The expert also concluded based on an analysis
of open-ended responses that the phrase “‘made with’ used in the Bud Light
commercial to describe the relationship between Miller Lite and/or Coors Light
and corn syrup is ambiguous.”
MC also argued that AB’s ads exploited or furthered
misconceptions about corn syrup and high fructose corn syrup (HFCS).  They are not the same thing, but MC’s industry
expert identified “a common point of confusion about corn syrup and HFCS,
despite the fact that they are very different products.” The survey expert
concluded that “more respondents who saw the test stimulus (24 percent) than
who saw the control stimulus (19 percent) believed that the commercial says,
suggests, or implies that corn syrup and high fructose corn syrup are the
Unsurprisingly, after the ad campaign was launched, MC received
a bunch of consumer communications related to corn syrup, up from basically
none. The survey expert also analyzed these, and found that 18% indicated that
the presence of corn syrup would end or decrease their purchases of MC beers
and 4% indicated they’d start or increase purchases.  Relatedly, social media responses indicated
that consumers were reacting to the ads as if corn syrup were a bad thing.  Of consumer posts that mentioned corn syrup
and at least one of the relevant brands, 22% expressed negative sentiments and
9.8% expressed positive sentiments. Similarly, 28.6% of consumer posts indicated
a mistaken belief that corn syrup used in brewing is present in the final
product (the beer itself), while only 6.9% of posts demonstrated understanding
that corn syrup wasn’t present in the final beverage.

Social media posts indicating that corn syrup is in the beer and that’s bad

For the misleadingness alleged here, at the preliminary
injunction stage, a consumer survey or other “hard evidence of actual consumer
confusion” is not required. Instead, the Seventh Circuit, consistent with its
self-understanding as a court of common-sense realists who are good at interpreting
the ordinary meaning of ads, instructs that district courts should analyze “the
ads themselves, the regulatory guidance, and the evidence of decreased demand.”
 The court mentioned using intent to deceive
as the basis of a presumption that the deception succeeded, but pointed out
that courts that list this possibility never seem to find the requisite
egregious intent, and it wasn’t going to be the first.  [The evidence here seems to me to support a
finding that MC intended consumers to take away the idea that “brewed with” and
“made with” is the same as “ingredient in the beverage.”  Is that “egregious”?  I think it’s about the natural meaning of an
advertising statement.]
Statements that Miller Lite and Coors Light “use” or are
“made with” or “brewed with” corn syrup were literally true, but allgedly
deceived consumers into believing that MC’s products actually contained corn
syrup and thus were unhealthy and inferior to Bud Light. MC relied on Abbott
Laboratories v. Mead Johnson & Company, 971 F.3d 6 (7th Cir. 1992), in which
the Seventh Circuit concluded that the name Ricelyte “implies more than the
permissible message that Ricelyte is produced from rice or contains rice syrup
solids derived from rice carbohydrates. It also implies that Ricelyte actually
contains rice and rice carbohydrates—or at least we can say that Abbott has
established a strong likelihood of so proving at trial.” 
But there is no affirmative duty to disclose or disclaim if
the advertisement at issue is not false or misleading. And, unlike in Abbott
Laboratories, the court thought that, viewing the “made with,” “brewed with” or
“uses” statements in their full context, there were no express or implicit
messages that the corn syrup is actually in the finished product. [So the court
rejects the survey finding that indeed this was the message received by
consumers from the ads.]  Specifically, the
ads using the “made with” or “brewed with” language didn’t show corn syrup
being added to the finished MC products.
MC also relied on Eli Lilly and Company v. Arla Foods, Inc.,
893 F.3d 375 (7th Cir. 2018), in which the Seventh Circuit affirmed a
preliminary injunction against a cheese manufacturer’s ads implying that milk
from recombinant bovine somatropin (“rbST”)-treated cows was unwholesome. The ads
stated that “Arla cheese contains no ‘weird stuff’ or ‘ingredients that you
can’t pronounce’—in particular, no milk from cows treated with [rbST],” and
depicted rbST as “a cartoon monster with razor sharp horns and electric fur.”  Though the explicit statements were true, the
campaign “centers on disparaging dairy products made from milk supplied by
rbST-treated cows” and drew “a clear contrast between Arla cheese (high
quality, nutritious) and cheese made from rbST-treated cows (impure,
unwholesome)” with monster imagery, “weird stuff” language, and child actors “to
colorfully communicate the message that responsible consumers should be
concerned about rbST- derived dairy products.”
But the ads here didn’t “disparage” corn syrup “or otherwise
expressly draw attention to any negative health consequences.” (Even so, the
court apparently agreed with MC that an express link “may have been unnecessary
here, since at least some consumers appear to associate corn syrup, and
particularly high fructose corn syrup, with harmful health consequences, or
certainly defendant hoped,” but apparently didn’t consider that to be enough.)  Instead of “analyzing the commercial or the
advertising campaign more broadly in order to demonstrate that these statements
are misleading,” MC relied on the responses to open-ended survey questions, and
that wasn’t enough.
The problem with using the survey to find the ads misleading
(even though misleadingness is, even in the Seventh Circuit, supposed to be shown with consumer
reaction evidence) is that surveys can’t be used to bring statements that are merely
“susceptible to misunderstanding” within the scope of the Lanham Act. Mead
Johnson & Company v. Abbott Laboratories, 201 F.3d 883 (7th Cir. 2000). In
that case, “the Seventh Circuit rejected an attempt to solely rely on survey evidence
to demonstrate that language is misleading.” On a petition for rehearing in Mead Johnson, the court of appeals stated
that “interpreting ‘misleading’ to include factual propositions that are
susceptible to misunderstanding would make consumers as a whole worse off by
suppressing truthful statements that will help many of them find superior
products.” The court of appeals also removed its initial statement that “[a]
‘misunderstood’ statement is not the same as one designed to mislead.” The
court here commented that this statement would have supported plaintiff’s
position that intent to deceive could be a basis for finding a statement
misleading, but it’s gone now.  [I find
it ironic that an amendment made to recognize that the Lanham Act is strict
liability is used here to contract liability; the district court’s reasoning
also makes a logical error about the contrapositive: the fact that intentional
deception isn’t required for liability doesn’t mean that intent to deceive isn’t
probative of whether an ad is misleading.]
“The court notes that Mead Johnson is not without its
critics, and understandably so: how does one draw the line between an
advertising statement that is susceptible to misunderstanding but not
misleading?”  The court cites me:
One scholar has suggested that this
holding requires materiality in addition to a misunderstanding for a claim to
be misleading. Rebecca Tushnet, Running the Gamut from A to B: Federal
Trademark and False Advertising Law, 159 U. Pa. L. 1305, 1349 (2011). To
illustrate, Tushnet explains, “One may misunderstand a fact in the abstract: I
could be wrong about the size of a computer’s hard drive. If I am misled,
however, I am being led: induced, or at least potentially induced, to change my
position based on my misunderstanding, as when I am more likely to buy a
computer because of my belief about the size of the hard drive.”
But even this formulation “suggests that something more
overt is required on the part of the advertiser to find a true statement misleading.”
[I respectfully disagree.  The “something
more” is materiality, which shouldn’t have to be “overtly” claimed in the ad,
but rather should be based on evidence about the kinds of things consumers care
about.  In my hard drive example, nothing
more should be required than a misstatement about the hard drive’s size plus
evidence that consumers care about the size of hard drive, rather than also
requiring the rest of the ad to say “you should care about hard drive size!”]
“The Third Circuit — the only court to discuss
substantively the Mead Johnson
decisions — described the Seventh Circuit’s essential holding as follows: ‘there
are circumstances under which the meaning of a factually accurate and facially
ambiguous statement is not open to attack through a consumer survey.’”  [But exactly what are those circumstances?  I obviously share the district court’s
frustration with the vagueness of the existing Seventh Circuit formulation.  The other possibility, besides materiality,
that I discuss in my advertising law class is cost-benefit analysis: given how
utilitarian the Seventh Circuit is, that might be even more plausible,
especially given its language in response to the petition for rehearing.  The difference between true but misleading
and true but misunderstood might be whether one can convey the truth some other,
less misleading way. If a statement is useful to some substantial number of
consumers and it can’t be appropriately qualified without confusing/failing to
inform that subset, then confusion among another subset ought to be accepted as
irreducable and unfortunate “misunderstanding.” 
But if there is a way to
convey the truth without also producing a big chunk of materially confused
consumers, then the consumer protection purpose of the Lanham Act demands that
we label the inefficient presentation of the truth “misleading.”  In that case, the survey here apparently shows
that the existing ads are misleading, not just misunderstood, given the
possibility shown by the control ad of conveying the truth without confusing
nearly as many consumers.  In other
words: some people may still misunderstand the control ad. But if it’s as good
as we can get while still allowing AB to convey the truth, for whoever cares
about it, then it’s the ad that should be used.]
The district court reasoned that “requiring plaintiff to
point to some other aspect of the ad besides a truthful statement” was
consistent with the caselaw—other cases finding misleadingness “consistently
seem to rely on disparaging or derogatory references to the ingredients in the
competitor’s product, or references that suggest a quality not present in a
product is in fact in the product.” The fact that AB made a bunch of noise
about corn syrup was not itself disparaging. 
MC relied on Grice’s “maxim of relevance,” H.P. Grice, Logic
and Conversation, in 3 Syntax and Semantics: Speech Acts, 47 (P. Cole and J.L.
Morgan, eds. 1975). As formulated by MC’s counsel:
if a speaker says something that is
capable of more than one meaning and knows that . . . one of those meanings is
something that’s relevant and meaningful information to the listener and that
the other meaning is something that is irrelevant and not meaningful to the
listener, the listener will assume that the speaker means the meaningful,
relevant statement because why would you be telling me something that’s not
The court found this argument “[i]ntuitively” appealing,
despite AB’s argument that there are other reasons to highlight rice versus
corn syrup distinction, namely that consumers may align Bud Light with the
“farm-to-table” movement or using a “real ingredient versus a syrup.” The court
thought that was “counter to the weight of the evidence as to defendant’s
intent that associating Miller Lite and Coors Light with corn syrup would
motivate consumer’s health concerns with consuming corn syrup or worse, high
fructose corn syrup.”  But even so, the scale
of a campaign wasn’t enough to find a “neutral, truthful statement”
I think the court’s reasoning does not mesh with how
advertising actually works, and encourages pollution of the information environment.
As Eric Goldman and I have written in our text:
[W]hen an advertiser prominently
claims some feature for its product, we are likely to assume that the feature
is relevant and desirable. The advertiser is using the cooperative principle of
relevance to imply these things without stating them directly. The only direct
statement is that the feature exists. Researchers have studied irrelevant
claims used to tout brands, such as claims that instant coffee has flaked
crystals. When some consumers saw ads featuring relevant attributes and others
saw ads featuring irrelevant attributes, the latter group preferred the product
more. Even when the researchers told consumers which attributes were irrelevant
in advance, consumers still preferred the product more when shown ads using the
irrelevant attribute. See Gregory S. Carpenter et al., Meaningful Brands From
Meaningless Differentiation: The Dependence on Irrelevant Attributes, 31 J. Mktg.
Res. 339 (1994).
The fact that it’s in an ad instructs the viewer about the value
to be assigned to the advertised characteristic—and consumers know this.
MC had another possible argument: the “something else” might
come from the rest of the campaign—the
ads that didn’t limit themselves to “made with” or “brewed with” but were (otherwise)
focused on exactly the same message. “In other words, consumers could
reasonably interpret ‘made with’ and ‘brewed with’ to mean corn syrup is in the
final product because of defendant’s other ads describing Bud Light as having 100%
less corn syrup, or describing Miller Lite as ‘corn syrup’ and Bud Light as ‘no
corn syrup’ without reference to the brewing process.”  But the court was concerned that this was too
much of a stretch because most of the ads at issue, and the ones most widely
disseminated, used “made with,” “brewed with,” or “uses.”
The court also declined to follow FTC cases saying that
defendants can’t exploit preexisting misunderstandings, because FTC precedent “is
largely inapplicable to Lanham Act cases.” [While each of the district court’s
conclusions here is understandable on its own, I have to say that the net
impression is: MC needs to show “something more,” but the court systematically excludes
any possible “more” that is outside the four corners of a challenged ad—which does
not fit my understanding about how human communication works.]
Thus, there was no likelihood of success on the merits as to
ads solely using the language “brewed with,” “made with,” or “uses.”
Next, the court turned to ads touting that Bud Light has
“100% less corn syrup than Miller Lite or Coors Light” or that it has “no corn
syrup.” “[T]hese statements, while also literally true, support a reasonable
interpretation that Miller Lite and Coors Light contain corn syrup,” and MC
showed a likelihood of success on the merits.  AB argued that, given the other ads, consumers
would understand these to be shorthand references to brewing, but “a reasonable
jury could and likely would find that these ads encouraged consumers to draw
the wrong inference from the original ads.”
“Ingredient” claims: There aren’t labeling requirements for
beer ingredients, and it’s not clear what an “ingredient” is when it comes to
beer. For food, “ingredient” “appears to cover items that are used in the
production of a food product, even if not in the end product (e.g., leavening
items).” In the past (and apparently even now), MC has listed corn syrup as an
“ingredient” on its website, without any reference to it being used solely in
the brewing process and not present in the end product.  In context, in most of the ads, “ingredient”
was used in conjunction with the “made with” or “brewed with” language, except
for one ad, the one that says “Look if you’re this set on imitating our
kingdom, may I suggest also imitating us by putting an ingredients label on
your packaging. People want to know what ingredients are in their beer. But
what do I know? I’m just the king of a kingdom that doesn’t brew beer with corn
syrup.”  That language crossed the line “to
encourage a reasonable consumer to believe that corn syrup is actually
contained in the final product.”
MC also challenged AB’s statements that Miller Lite and
Coors Light selected corn syrup to “save money” or because it is “less
expensive.” The court refused to hold this misleading based on MC’s theory that
a consumer would conclude that cheaper substrates are less healthy—that was
just too much of a stretch.  [This result,
by the way, seems reasonably consistent with my proposed cost-benefit reading
of Mead Johnson.]
The court then returned to MC’s “strongest evidence,” AB’s
own statements of its intent that “it was both aware of and intended to exploit
consumer concerns about corn syrup (and high fructose corn syrup in particular).”
Though this evidence indicated AB’s hope that consumers would interpret
statements about “made with” or “brewed with” as meaning that corn syrup was
actually in the finished products, the court declined to presume
misleadingness, “though perhaps this evidence could serve to color the ‘made
with’ and ‘brewed with’ statements to push them across the line to allow a
reasonable finding that they are misleading, and not simply susceptible to misunderstanding.”
[Which suggests that a jury could consider the issue as to all the ads, though
the court then indicates that it’s most interested in guidance from the court
of appeals.  Again, one might be able to
fit evidence of intent into a cost-benefit analysis as well as into a
materiality analysis: an intent that consumers believe something beyond the
literal statement could itself suggest that there are other, less confusing
ways to convey the truth, and an intent that consumers be alarmed by a
statement is pretty good evidence that they might act on it, if we believe that
a major manufacturer like AB generally has some idea about what its consumers
care about.]
The court then, somewhat confusingly, turned to whether
there was evidence that a “substantial segment” of the audience was deceived by
the challenged ads: the survey, consumer communications to MC, and social media
evidence.  AB contested the survey and
the 35% net confusion finding.
First, it was ok to use a test commercial that wasn’t the ad
that launched the ad campaign and ran the most times/was seen by the most
people. Both ads compared the beers and highlighted corn syrup, and AB didn’t
articulate a basis for treating them differently.
AB argued that the questions were leading because a consumer
who chose the answer “made with corn syrup” to a communication/filter question
was then told: “Being “made with” corn syrup may mean a number of different
things” and then asked “Which, if any, of the following statements does the TV
commercial say, suggest, or imply …?” (The possible answers included used only
during brewing, in the beverage you drink, both, neither, and don’t know/unsure.)  AB argued that the follow-up improperly
instructed respondents that the term “made with” is ambiguous. This went to
weight, rather than admissibility, and there was “at least some likelihood of
persuading a reasonable jury of the risk of confusion.” Anyway, survey evidence
isn’t required for a preliminary injunction.
As for the consumer communications, there weren’t that many
of them—32 total, out of the approximately 100 million people who watched the
Super Bowl, and many accurately described use or brewing with corn syrup.
Viewed in isolation, these statements were insufficient to prove that a
substantial segment of consumers were likely to be deceived, “but it is some
anecdotal support for the survey results.” The social media reactions were
treated similarly.
So the survey, which tested a “made with”/“brewed with” ad,
helped support a finding of likely success on the merits, but only as to those
ads that didn’t use the “made with”/“brewed with” language and thus crossed the
line from misunderstanding to misleading. 
That sounds weird, but I guess I see how the court got there: if “made
with”/“brewed with” ads are confusing but nonetheless nonactionable, then
surely the ads that go even further are deceptive.
Irreparable injury:  “[I]t is well settled that injuries arising
from Lanham Act violations are presumed to be irreparable, even if the
plaintiff fails to demonstrate a business loss.” Promatek Indus., Ltd. v. Equitrac
Corp., 300 F.3d 808, 813 (7th Cir. 2002). The Seventh Circuit hasn’t revisited this
in light of eBay (though it should, but
I understand why a district court wouldn’t, even though I think it could also
have read the writing on the wall/in the statute). Anyway, no presumption was necessary
given the evidence of irreparable harm. 
AB argued that failure to prove harm to sales prevented a finding of
irreparable harm, but MC showed reputational harm through its survey and anecdotal
social media and consumer comments, which was irreparable even with conflicting
evidence about whether MC’s sales or market share had been harmed.  Indeed, the evidence showed that MC’s market
share was “stable at best, while defendant’s sales and market share is growing,
albeit apparently at the expense of other, smaller competitors. This begs the
question why plaintiff’s share of these lost sales has not grown, at least in
proportion to its share of the market for light beers.”
However, the court qualified its finding of harm, which
affected the scope of the injunction.  As
in the SDNY
Danone case
, the court thought
that there were truthful things that AB can say, and harm caused by truth
couldn’t be actionable; relevant harm comes from the difference between the
truth and what AB actually said. “Here, if plaintiff’s reputation was injured
solely, or even principally, by consumer awareness that its products are brewed
with or made with corn syrup, this may not serve as a basis for reputational
injury.” [In the Danone case,
however, there was no evidence that the potential truthful statement—Chobani actually
had less sugar than the Dannon product, just not as much less as it claimed—was
misleading, whereas MC’s evidence tends to show that the truthful “made with”/“brewed
with” statements, presented in the way AB presents them, imply misleading factual
claims to consumers.]

package with “no corn syrup” and image prominently on sides
The injunction thus didn’t disturb ads that only use the
words “brewed with,” “made with,” or “uses.” MC also sought to cover AB’s
packaging that prominently featured the claim “no corn syrup,” but this wasn’t part
of the original written PI submissions. 
The court allowed MC to submit an argument why the injunction should cover
noncomparative packaging.  [The answer is
Grice, or maybe xkcd.]

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