HC-2013-000089 - [2025] EWHC 2376 (Ch)

Merck relied on the evidence of four witnesses of fact. Ultimately MSD only sought to cross-examine one of them, Ms Vittinghoff, and did not challenge any part of the evidence of the other three witnesses.

Jonas Koelle has worked for Merck since 2002 and has been head of its trade marks department since 2014. He provided two witness statements for this trial addressing, in particular, the nature and extent of the conduct of MSD regarded as objectionable by Merck, his involvement with Merck’s rebranding exercise from 2013 onwards, the various trade mark licences granted by Merck (including within the Merck group of companies on transfer pricing terms), and how Merck would have viewed the prospect of granting a licence to MSD to cover MSD’s acts amounting to breaches of contract and trade mark infringements in the UK.

Katrin Mennejoined Merck in 2014 as a project manager for its rebranding exercise, and is now head of brand and content marketing. She provided a short witness statement with evidence about Merck’s use of social media and internet marketing, and an estimate of the costs to Merck of maintaining two mirrored websites (one for the USA/Canada and another for the rest of the world).

Frank Sielaff is an external consultant to Merck, who previously worked at Merck between 2005–2019, eventually becoming director and head of its digital reputation and web platform department. He provided a short witness statement addressing Merck’s use of internet analytics tools (specifically Google Analytics, SEMrush and SimilarWeb) to gather and compare web traffic data for Merck’s websites as well as competitor sites, including MSD websites.

Undine Vittinghoff has been the director of Merck’s tax department since 2010. In 2014 Ms Vittinghoff co-authored a report for Merck analysing the company’s umbrella brand from a transfer pricing perspective. She provided a witness statement on the background and purpose of that report, and was cross-examined on this (by Mr Hobbs) for almost half a day. While her witness statement was given in English and her cross-examination was also conducted in English, she was occasionally assisted by a German interpreter. She was a straightforward witness who gave helpful answers that were not materially challenged by Mr Hobbs.