Because I Expect US Merck May Appeal — I’ll Not Publish The 16 Page Letter, In Full.. BUT…

This updating item concerns the now nearly decade long disputes, about the use of — and entitlement to — the trade-name “Merck” in the United States, and around the globe. A new order was entered in federal court in New Jersey, this morning. US Merck isn’t going to like it — and I expect they might appeal.

By way of background, you may read this link. But the narrow dispute today decided (at the US Magistrate level) is whether the German Merck is allowed to publish certain of the answers of the officer/agent of US Merck — to deposition questions, about how the German firm’s campaign called “Original Merck” (among other matters) has harmed the US Merck. The parties had agreed that these answers could not be used in “any other litigation“. However, German Merck seeks recovery from its insurers, under insurance policies — for the legal bills it has incurred in defending the US Merck’s suit (brought under the Lanham Act).

All of which is a very long wind up. . . to say what I will disclose today (even before any appeal) is that. . . the German Merck has spent well-over $30 million in legal fees, fighting these cases around the globe. This is so, and may total over $50 million to date — because the letter references only the US federal Lanham Act case, and not the UK, Australian, Canadian, Chinese, Russian, Mexican and EU (and other) cases pending around the planet, to establish this $30 million figure. Thus:

. . . .Merck KGaA’s complaint in that case contends that its insurance carrier owes nearly $30 million in defense costs that Merck KGaA incurred in this case. . . .

And it would be fair to assume US Merck has spent a like amount. So — my point, then: with perhaps $100 million already spent on lawyers, to date, over a decade — wouldn’t it behoove these two (and more importantly, the public shareholders of each) to resolve the litigation globally, via an agreed settlement? It is true that the prior 1960s/70s settlement (co-use) letters, related to these naming issues were entirely too vague as to matters not yet then foreseen — like those that now involve border-less internet marketing. . . but spending $100 million, and billowing sky-ward, daily — on lawyers. . . is no answer.

C’mon folks — work it out. Settle this. In writing. Be precise — but decide something like “MSD” (in parentheses) will be used in certain ways, by the US entities — and “KGaA” (also in parentheses) will appear after certain uses by the German firm. This is not so complicated that another $100 million need be spent on fighting about it.

Said another way, suppose that $100 million had been spent developing new COVID-19 treatments. . . isn’t that more precisely “on brand“, for the mission(s) — of both of these vast, global life-science companies?

I certainly. . . think so.

नमस्ते

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