The Coca-Cola Company sued for injunctive relief charging Overland, Inc. with trademark infringement and unfair competition in violation of the Lanham Trade-Mark Act (Lanham Act), 15 U.S.C. Sec. 1051 et seq.1 Overland denied liability and counterclaimed charging Coca-Cola with using trademark-infringement suits as a means of attempting to monopolize the soft-drink syrup market in violation of Sec. 2 of the Sherman Act, 15 U.S.C. Sec. 2. The district court granted summary judgment against Overland on both Coca-Cola's complaint and Overland's antitrust counterclaim. The court permanently enjoined Overland and its agents, servants, and employees, from substituting in response to orders for "Coca-Cola" or "Coke" any beverage other than that sold by the Coca-Cola Company unless they first give the customer oral notice of the substitution and obtain the customer's approval. It also dismissed Overland's antitrust counterclaim with prejudice. Because we find that there are no genuine issues of material fact with respect to either Overland's liability or Coca-Cola's non-liability, and because we also find that Coca-Cola is entitled to judgment as a matter of law, we affirm.

Overland operates a restaurant and bar known as the Topaz Lodge and Casino. The only cola soft drink sold at the Topaz Lodge and Casino is Pepsi-Cola. Coca-Cola's suit for trademark infringement and unfair competition is based on the Topaz Lodge and Casino's alleged practice of serving Pepsi-Cola in response to specific orders for "Coca-Cola" or "Coke"2 without orally notifying customers that a substitution has been made.3 In support of its motion for summary judgment, Coca-Cola submitted affidavits of its Trade Research employees assigned to investigate the Topaz Lodge and Casino. These affidavits document that on 23 of 29 separate occasions over a three-year period, employees at the Topaz Lodge and Casino substituted, without comment, Pepsi-Cola in response to specific orders for "Coca-Cola" or "Coke."4

Overland does not seriously dispute that its employees have on occasion substituted Pepsi-Cola, without comment, in response to orders for "Coca-Cola" or "Coke." Taken alone, such conduct by Overland's employees appears to present a clear-cut case of trademark infringement and unfair competition. Coca-Cola Co. v. Dorris, 311 F. Supp. 287, 289 (E.D.Ark.1970), cited with approval in HMH Publishing Co. v. Lambert, 482 F.2d 595, 598 n. 5 (9th Cir.1973); see Heaton Distributing Co. v. Union Tank Car Co., 387 F.2d 477, 484 (8th Cir.1967). Overland, nevertheless, appeals the district court's grant of summary judgment and injunctive relief, claiming that it has certain defenses that raise genuine issues of material fact. Specifically, Overland contends that there are genuine issues of material fact as to whether (1) certain signs indicating that only Pepsi-Cola would be served provided customers with adequate notice of the substitutions; (2) "Coke" has become a generic term not eligible for protection under the Lanham Act; (3) the permanent injunction issued by the district court requiring oral notice of the substitutions is impossible to perform; and (4) Coca-Cola is using trademark-infringement suits as a device to achieve a monopoly in the soft-drink syrup market and thus is guilty of unclean hands. Overland further contends that the validity of its antitrust counterclaim raises genuine issues of material fact.

Summary judgment is proper if the pleadings and evidence submitted in support of the motion show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of a genuine issue of material fact. Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 668 (9th Cir.1980). In reviewing the grant of summary judgment, we must view all evidence in the light most favorable to the party opposing the motion. Id.

Overland has posted signs in the restaurant and bar, and placed disclosures in its menus advising customers that Pepsi-Cola is the only cola beverage served.5 Overland contends that its signs and disclosures provided adequate notice of the beverage substitutions and thus supply a complete defense to the charges of trademark infringement and unfair competition. It maintains that the adequacy of its signs and disclosures at least raises a genuine issue of material fact.

Neither the Supreme Court nor the circuit courts of appeals have apparently ruled on what constitutes adequate notice in beverage-substitution cases. The district courts, however, have uniformly held that signs do not provide adequate notice. E.g., Coca-Cola Co. v. Dorris, 311 F. Supp. at 290; Coca-Cola Co. v. Foods, Inc., 220 F. Supp. 101, 106 (D.S.D.1963). The district courts require that for notice to be adequate, the customer must be informed orally that the beverage ordered is not available and be given the opportunity to accept or reject the substituted product. Coca-Cola Co. v. Dorris, 311 F. Supp. at 290.

Although we decline to rule that signs can never provide adequate notice, we adopt the general rule set forth by the district courts that oral explanations, and not signs, are normally required to notify customers adequately in beverage-substitution cases.6 Because we find Overland's signs and disclosures were not sufficiently conspicuous7 to justify a departure from this general rule, we reject as a matter of law Overland's defense that its signs and disclosures provided adequate notice.8 It thus follows that the adequacy of Overland's signs and disclosures does not raise a genuine issue of material fact.

Overland argues that the trademark "Coke"9 has become generic to all cola beverages and thus is no longer entitled to protection under the Lanham Act.10 It maintains that whether the trademark "Coke" has become generic raises a genuine issue of material fact which precludes the grant of summary judgment. We disagree.

In its answer to Coca-Cola's complaint, Overland admits that "Coke" is a validly-registered and subsisting trademark under federal law. Federal registration of a trademark endows it with a strong presumption of validity. Miss Universe, Inc. v. Patricelli, 408 F.2d 506, 509 (2d Cir.1969); see the Lanham Act, 15 U.S.C. Secs. 1057 and 1115. The general presumption of validity resulting from federal registration includes the specific presumption that the trademark is not generic. See Reese Publishing Co. v. Hampton International Communications, Inc., 620 F.2d 7, 11 (2d Cir.1980); Miss Universe, Inc. v. Patricelli, 408 F.2d at 509.

A party moving for summary judgment is entitled to the benefit of any relevant presumptions that support the motion. United States v. General Motors Corp., 518 F.2d 420, 441-42 (D.C.Cir.1975); see 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 56.15 (2d ed. 1982). By virtue of the presumption that the trademark "Coke" is not generic, Coca-Cola has met its burden of demonstrating that the genericness of the trademark "Coke" does not raise a genuine issue of material fact.11

Once the moving party has sufficiently supported his or her motion for summary judgment, the opposing party "may not rest upon the mere allegations or denials in his pleadings," but must by affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Overland attempts to rebut the presumption that "Coke" is not generic and to establish the existence of a genuine issue of material fact by submitting affidavits taken from employees at the Topaz Lodge and Casino. These affidavits state that the employees believe that customers ordering "Coke" are using the term in a generic sense.

These affidavits are clearly insufficient to rebut the presumption that the trademark "Coke" is not generic and thus do not establish the existence of a genuine issue of material fact. Before affidavits opposing a motion for summary judgment can be given any weight, Rule 56(e) requires that they be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify on the matters stated therein. Id. Overland's employees are not qualified to testify as to what their customers are thinking when using the term "Coke." See Fed.R.Evid. 701. The affidavit statements of the employees that they believe customers use "Coke" in the generic sense are thus inadmissible and must be disregarded as failing to meet the requirements of Rule 56(e). Moreover, even if the employees' affidavits are considered, they are too speculative and insubstantial to establish the existence of a genuine issue of material fact with respect to the genericness of the trademark "Coke." See British Airways Board v. Boeing Co., 585 F.2d 946, 951-52 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S. Ct. 1790, 60 L. Ed. 2d 241 (1979).

The district court permanently enjoined Overland and its agents, servants, and employees from substituting any beverage in response to specific orders for "Coca-Cola" or "Coke" unless they first give the customer oral notice of the substitution and obtain the customer's approval. Overland argues that the injunction is impossible to perform because it cannot guarantee that its employees will give the required oral notice on each and every occasion that "Coca-Cola" or "Coke" is ordered.12 Overland contends that a court should not grant an injunction that is impossible to perform. It claims that the impossibility of its performing the injunction raises a genuine issue of material fact.

We find Overland's claim of impossibility unconvincing and hold that it is too insubstantial to raise a genuine issue of material fact.13 Oral notice by employees that a trademarked product ordered by a customer is unavailable is a common, everyday practice at restaurants and bars.14 We find it difficult to believe that the required oral notice to customers that "Coca-Cola" or "Coke" is unavailable will be impossible for Overland's employees to remember or perform. Moreover, since the injunction binds not only Overland but its agents, servants, and employees, the employees themselves will be subject to contempt proceedings if they fail to give customers the required oral notice.15 The threat of potential contempt liability will provide Overland's employees with sufficient incentive to give the required notice, thereby easing Overland's task of securing their compliance and eliminating any problem of impossibility.16

D. Antitrust Counterclaim and Unclean-Hands Defense

Overland raises the affirmative defense that Coca-Cola is guilty of unclean hands because it is bringing trademark-infringement suits as part of a scheme to obtain a monopoly in the soft-drink syrup market. In combination with this unclean-hands defense, Overland filed a counterclaim charging Coca-Cola with attempting to monopolize the soft-drink syrup market in violation of Sec. 2 of the Sherman Act. 15 U.S.C. Sec. 2. Overland describes the alleged scheme employed by Coca-Cola in its attempt to monopolize the soft-drink syrup market as follows:

Coca-Cola dispatches employees to uncover retailers substituting, without oral notice, another cola beverage in response to orders for "Coca-Cola" or "Coke." Coca-Cola then brings trademark-infringement suits against these retailers seeking permanent injunctions prohibiting such substitutions unless the customer is given oral notice of, and assents to, the substitution. Because the term "Coke" is used generically by customers, and because of the human failings of employees, Coca-Cola is aware that it is virtually impossible for retailers to comply with the requested injunctions. Coca-Cola nevertheless harasses retailers by bringing trademark-infringement suits seeking such injunctions, and when the injunctions are granted, continues to harass retailers by threatening and actually instituting contempt proceedings for mere technical violations of the injunctions.

Overland contends that this conduct demonstrates that the real motive behind Coca-Cola's trademark-infringement suits is not trademark protection, but to use the suits as a device to coerce retailers into switching to the sale of Coca-Cola's product. Overland further claims that Coca-Cola has successfully employed trademark-infringement suits to coerce many retailers into switching to its product and that Coca-Cola's present suit was brought for the purpose of achieving the same result. On the basis of these allegations, Overland asserts that the validity of its antitrust counterclaim and unclean-hands defense raises genuine issues of material fact.

Overland does not contend that the trademark-infringement suits brought by Coca-Cola lack merit. In fact, Overland acknowledges Coca-Cola's overwhelming success in these suits, citing numerous cases in its brief in which Coca-Cola was the prevailing party. Overland's theory is that even though Coca-Cola's suits have merit, they are still sham suits subject to antitrust regulation because they are brought not for the purpose of trademark protection, but for the purpose of coercing retailers into switching to Coca-Cola's product. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511, 92 S. Ct. 609, 612, 30 L. Ed. 2d 642 (1972) (explaining the sham exception to Noerr-Pennington doctrine).

We need not decide whether the bringing of meritorious trademark-infringement suits can ever constitute sham suits violative of the antitrust laws.17 This is because even accepting Overland's legal theory as viable, we find that its antitrust counterclaim and unclean-hands defense do not raise any genuine issues of material fact.

Summary judgment is not favored in antitrust cases particularly where motive and intent are at issue. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962). Such relief, however, is not precluded in antitrust cases and when properly used, is a valuable means of preserving scarce judicial time and resources. Mutual Fund Investors, Inc. v. Putnam Management Co., 553 F.2d 620, 622 (9th Cir.1977); see Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, 637 F.2d 1376, 1381 (9th Cir.), cert. denied, 454 U.S. 831, 102 S. Ct. 128, 70 L. Ed. 2d 109 (1981).

Coca-Cola as the moving party has the burden of establishing the absence of any genuine issue of material fact with respect to Overland's antitrust counterclaim and unclean-hands defense. This burden is satisfied once Coca-Cola rebuts Overland's allegations of attempted monopolization by introducing probative evidence supporting an alternative interpretation of its conduct. Blair Foods, Inc. v. Rancher's Cotton Oil, 610 F.2d at 671. If Overland then fails to come forward with specific factual support for its allegations of attempted monopolization, summary judgment is appropriate. Id.

Coca-Cola rebutted Overland's allegations and satisfied its burden by producing evidence that its present and past trademark-infringement suits were legitimate actions necessary to protect against infringement of its trademarks. The record not only shows that Coca-Cola has been eminently successful in its past trademark-infringement suits, but that its present suit, on the basis of the evidence compiled, was fully warranted. Coca-Cola thus produced probative evidence that its trademark-infringement suits are justifiably interpreted as the legitimate exercise of its right to protect its trademarks, and not as devices used to coerce retailers to switch to its product.

Overland failed to respond to Coca-Cola's showing by coming forward with specific factual support for its allegations of attempted monopolization. Overland produced no evidence that Coca-Cola had attempted to persuade it to switch to Coca-Cola's product. Nor has Overland identified a single retailer that had been coerced to switch as the result of Coca-Cola's institution of a trademark-infringement suit.18 Because Overland failed to come forward with specific factual support for its allegations of attempted monopolization, the district court's grant of summary judgment on Overland's antitrust counterclaim and unclean-hands defense was proper.

Even viewing the evidence in the light most favorable to Overland, it is still difficult to escape the conclusion that Overland's antitrust counterclaim and unclean-hands defense were not carefully considered claims, but merely makeweight arguments introduced in a futile attempt to forestall summary judgment. To allow Overland to get to trial on the basis of its unsupported allegations in the hope that some favorable evidence could be developed at trial would be improper. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90, 88 S. Ct. 1575, 1592-1593, 20 L. Ed. 2d 569 (1968).

The district court's grant of summary judgment against Overland on both Coca-Cola's complaint and Overland's antitrust counterclaim is AFFIRMED.