                           PRECEDENTIAL
   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             _____________

            Nos. 17-3148 & 17-3231
                _____________

              THOMAS SKÖLD,

                              Appellant in 17-3148


                       v.

GALDERMA LABORATORIES L.P.; GALDERMA
        LABORATORIES, INC.;
GALDERMA S.A.; NESTLE SKIN HEALTH S.A.,

                           Appellants in 17-3231
                _____________

 On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
            (D.C. No. 2-14-cv-05280)
    District Judge: Hon. Wendy Beetlestone
                _______________

                    Argued
                October 30, 2018
Before: CHAGARES, JORDAN, and VANASKIE,* Circuit
                    Judges

                  (Filed: February 26, 2019)
                      _______________

Bruce W. Clark [ARGUED]
Christopher J. Michie
Clark Michie
220 Alexander Street
Princeton, NJ 08540

Michael D. LiPuma
325 Chestnut Street – Ste. 1109
Philadelphia, PA 19106
      Counsel for Thomas Sköld

Benjamin L. Mesches
Haynes & Boone
2323 Victory Avenue – Ste. 700
Dallas, TX 75219




       *
         The Honorable Thomas I. Vanaskie retired from the
Court on January 1, 2019 after the argument and conference
in this case, but before the filing of the opinion. This opinion
is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d) and Third Circuit I.O.P. Chapter 12.




                               2
Joseph Lawlor
Richard D. Rochford, Jr. [ARGUED]
Haynes & Boone
30 Rockefeller Center – 26th Fl.
New York, NY 10112
      Counsel for Galderma Laboratories L.P.; Galderma
      Laboratories, Inc.; Galderma S.A.; Nestle Skin Health
      S.A.
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       This case proves once again that people will fight for a
catchy name. Thomas Sköld sued his former business
partner, Galderma Laboratories L.P. (“Galderma”), alleging
that its use of the trademark “Restoraderm” constitutes
trademark infringement, false advertising, unfair competition,
breach of contract, and unjust enrichment. In the District
Court, only Sköld’s unjust enrichment claim was successful.
He now appeals the Court’s refusal to direct a verdict in his
favor on infringement and its denial of his post-trial motions.
Galderma cross-appeals,1 arguing that Sköld does not own the
       1
          The District Court granted judgment on Sköld’s
unjust enrichment claim against Defendants Galderma L.P.,
Galderma S.A., and Nestle Skin Health S.A, but not against
Galderma Laboratories, Inc. because “the 2004 Agreement
precluded that claim against [Galderma Laboratories,] Inc. as
CollaGenex’s successor-in-interest.” Accordingly, Galderma
Laboratories, Inc. did not cross-appeal.




                              3
Restoraderm mark and that the unjust enrichment verdict
cannot stand. For the reasons that follow, we will affirm in
part and reverse in part the judgment entered by the District
Court and will thus absolve Galderma of liability.

I.     BACKGROUND

       A.     Factual History2

       Sköld is an inventor and entrepreneur. He coined the
name “Restoraderm” for a proprietary drug-delivery
formulation that he developed for potential use in skin-care
products. In the early 2000s, he began searching for a partner
to help produce and sell Restoraderm products. To that end,
he attended a dermatology conference in 2002, where he
presented a publication on Restoraderm and distributed
samples of a potential product.

      Even before that, Sköld had attracted the interest of
CollaGenex, a skin-care company that was later acquired by
Galderma. CollaGenex and Sköld began negotiations to

       2
          While a post-trial motion for judgment as a matter of
law is given plenary review, we generally assume the jury
properly found facts. Mancini v. Northampton Cty., 836 F.3d
308, 314 (3d Cir. 2016). The facts recounted here are
consistent with Sköld’s perspective, despite our ultimate
disagreement with the legal conclusion he seeks. Cf. id.
(“Because the jury returned a verdict in favor of the plaintiff,
we must examine the record in a light most favorable to the
plaintiff, giving [the plaintiff] the benefit of all reasonable
inferences, even though contrary inferences might reasonably
be drawn.”)




                               4
establish a co-development partnership, and, after several
months, they executed a letter of intent. The letter, signed in
2001, stated that “[a]ll trade marks associated with the drug
delivery system; the proposed intellectual property; products
deriving therefrom and products marketed or to be marketed
by CollaGenex and/or any commercial partner of CollaGenex
anywhere in the world shall be applied for and registered in
the name of CollaGenex and be the exclusive property of
CollaGenex.” (App. at 1456 (emphasis added).)

       Then, in 2002, Sköld and CollaGenex signed a
contract they titled the “Co-Operation, Development and
Licensing Agreement” (the “2002 Agreement”). Under its
terms, “[a]ll trade marks applied for or registered (including
‘Restoraderm’) shall be in the sole name of CollaGenex and
be the exclusive property of CollaGenex during the Term and
thereafter[.]” (App. at 1465 (emphasis added).) A survival
provision stipulated that vested rights would outlive the term
of the agreement. In particular, that provision said, “[a]ny
termination under this Agreement … shall not affect in any
manner vested rights of either party arising out of this
Agreement prior to termination.” (App. at 1469.)

       After the 2002 Agreement was executed, CollaGenex
issued a press release announcing its plans to develop a
Restoraderm product line. It proudly publicized that “it ha[d]
licensed    a    novel    …      technology    …       named
Restoraderm(TM)… [that would] form the basis for a novel,
proprietary and differentiated portfolio of topical
dermatological pharmaceuticals.” (D.I. 78-5 at 676). With
Sköld’s cooperation, CollaGenex promptly applied to register
the Restoraderm mark with the United States Patent and
Trademark Office (the “PTO”).




                              5
       Two years later, Sköld and CollaGenex replaced their
2002 Agreement with an Asset Purchase and Product
Development Agreement (the “2004 Agreement”). Under the
2004 Agreement, Sköld transferred “Restoraderm Intellectual
Property” and related goodwill to CollaGenex. (App. at
1479.) “Restoraderm Intellectual Property” was defined to
include patent rights and associated know-how. (App. at
1478.) While separate provisions addressing trademark rights
were initially contained in a draft of the 2004 Agreement,
those provisions were removed prior to finalization of the
document. Sköld later admitted at his deposition that their
removal was “probably” because CollaGenex already owned
the Restoraderm trademark.3 (D.I. 76-23 at 351-352.)

      3
         Q. Now, you’ll see here that in Mr. Glazer’s email
      to you, as we talked about this morning, he cites,
      “Also, Collagenex has informed me that it already
      owns the Restoraderm trademark. Accordingly, are
      there any other trademarks that you own that should be
      assigned to Collagenex relating to this technology? If
      there's not, we can delete these trademark provisions
      from the agreement.” Now, in fact, that’s what
      happened; isn’t that correct, sir? The trademark
      provisions that we just looked at in Exhibit F in
      Section 1.20 and 1.24 were removed, were deleted or
      removed from the draft; isn’t that correct?
      A. I don’t know when, but it’s apparent that it is not in
      the signed version, and I imagine that that is due to
      that I didn’t have any other names that they were
      interested in to be part of the asset.
      Q. Okay.
      A. So your conclusion is probably right.




                              6
       In 2008, Galderma bought CollaGenex. Afterwards, it
conducted two analyses of its newly acquired intellectual
property portfolio.       Both analyses proposed using
Restoraderm as a brand name, given its strength and implicit
associations with skin restoration, but the suggestion was to
use the name on products employing other technologies, not
Sköld’s.4

       By early 2009, Galderma decided in fact to use the
Restoraderm mark on products that did not use Sköld’s
technology. While Galderma informed its employees of that
plan, it did not inform Sköld. He later heard a rumor that
Galderma was abandoning his technology, so, in June 2009,
he confronted an executive but was told he “shouldn’t take
any notice of [the rumor].” (App. at 242:13-14.) Actually, he
should have, because, in November 2009, Galderma
terminated the 2004 Agreement.5


(D.I. 76-23 at 351-352.)
      4
         The analyses were conducted in 2008 and 2009. The
2008 analysis noted that the “[a]greement with the inventor
[Sköld] could be stopped at any time.” (App. at 1791.) The
2009 analysis noted that the Restoraderm mark “fits well with
the concept of barrier repair/restoration[,]” and that the name
“implies barrier repair/restoring and is appreciated by the
HCP [(“Health Care Professional”)] community.” (App. at
1649.)
      5
         After the partnership ended, Sköld petitioned the
United States Patent and Trademark Office to cancel
CollaGenex’s (then Galderma’s) registration of the




                              7
       After that, Sköld sent Galderma a list of assets for it to
return, including the Restoraderm trademark. Galderma did
not surrender the mark and instead responded that “we are
[the] owner of this trade name” and that Sköld should not
“use this name anymore in your communication on the
technology.” (App. at 1670.) Sköld conceded in reply that
Galderma was “for now, the rightful owner until your
position is challenged.” (App. at 1669.)

        Sköld sought and eventually found new co-
development partners for his skin-care technology.6 The
resulting products, both nascent and on the market, are based
on the original Restoraderm technology but do not bear the
Restoraderm mark.7         In the meantime, Galderma’s
Restoraderm product line has enjoyed international success.
        B.    Procedural History

      In September 2014, Sköld filed this suit against
Galderma.   He alleged trademark infringement, unfair


Restoraderm mark. The contest over that petition remains
pending.
       6
         Finding new partners was difficult for Sköld because
of Galderma’s success and the resulting brand recognition of
Restoraderm. “Various companies did not feel comfortable
discussing business with Sköld about RESTORADERM and
RESTORADERM technology, given Galderma’s use of the
trademark.” (App. at 1756.)
       7
          Sköld tried to register a similar trademark for his
products – Restoraderm Lipogrid – but Galderma opposed it.




                               8
competition, and false advertising under the Lanham Act, and
breach of contract, unfair competition, and unjust enrichment
under Pennsylvania law.

        Galderma moved for summary judgment, alleging that
Sköld did not own the Restoraderm mark. Sköld v. Galderma
Labs., L.P., No. 14-5280, 2016 WL 724755, at *2 (E.D. Pa.
Feb. 24, 2016). The District Court disagreed and concluded
that, despite the language in the 2002 Agreement with respect
to trademark ownership, the 2004 Agreement voided any
ownership rights that Galderma had in the mark. Id. The
Court also considered a provision in the 2004 Agreement
stating, “Sk[ö]ld shall sell, transfer and deliver to CollaGenex
… all goodwill, if any, relating to the [Restoraderm
Intellectual Property].” (App. at 1479;) Sköld, 2016 WL
724755, at *5. Whether that provision encompassed, and thus
again transferred, the Restoraderm mark to CollaGenex was
something the District Court decided should await further
fact-finding. Id. at *5-6.         The Court therefore denied
summary judgment. Id. at *6.

       The case went to trial and, assuming he would win on
the question of ownership of the mark, Sköld asked the
District Court to direct the jury to find a likelihood of
confusion due to Galderma’s use of an identical mark on
similar skin-care products. The Court denied that request.

       The jury decided that Sköld was the rightful owner of
the mark and that he had proven unjust enrichment.
Nonetheless, the jury also concluded that Sköld had failed to
establish his claims for infringement, unfair competition, false
advertising, and breach of contract. According to the special
interrogatories returned with the verdict, the jury concluded,




                               9
on the infringement and unfair competition claims, that Sköld
had failed to demonstrate a likelihood of confusion, despite
the identical word mark being used on skin-care products
similar to ones Sköld had developed. The jury likewise
concluded that, with respect to the false advertising claim,
Galderma’s use of the Restoraderm mark had no capacity to
deceive.

        Both Sköld and Galderma filed post-trial motions.
Sköld moved for judgment as a matter of law or a new trial on
his claims, except for his successful unjust enrichment claim,
as to which he sought a new trial on damages and declaratory
relief confirming the jury’s finding in his favor. Regarding
the trademark infringement and false advertising claims, he
argued that the District Court had erred in denying his motion
to direct a judgment on likelihood of confusion. Moreover,
he argued, declaratory and injunctive relief was warranted
and should have been granted. Galderma argued in its post-
trial motion that Sköld’s unjust enrichment claim should be
rejected on both substantive and procedural grounds. The
Court granted Sköld’s request for a declaration as to unjust
enrichment, but otherwise denied the motions.

       In this appeal, Sköld argues that the District Court
erred by failing to direct the jury on likelihood of confusion,
as he had asked, and by denying his post-trial motions with
respect to infringement, false advertising, and the remedy for
his unjust enrichment claim. Galderma has cross-appealed
and argues that Sköld does not own the Restoraderm mark. It
also seeks dismissal of the unjust enrichment judgment.




                              10
II.    DISCUSSION8

       Ownership of the Restoraderm mark is the dispositive
issue in this case, and, on this record, it is a matter of contract
interpretation subject to plenary review.9 At the end of the
day, we conclude that Galderma is the rightful owner. The
2002 Agreement unambiguously provided for transfer of the
mark to Galderma’s predecessor in interest, CollaGenex.
Upon registration of the mark, that ownership became vested
and was confirmed for all the world to see. Even assuming
that the 2004 Agreement completely superseded the 2002
Agreement, it did nothing to disturb those vested rights. The
ownership issue should not have gone to the jury.

      A contract provision is ambiguous if it is susceptible to
two reasonable interpretations. Duquesne Light Co. v.

       8
         The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1338(a) and (b). We have jurisdiction pursuant to
28 U.S.C. § 1291.
       9
           “We exercise plenary review over the District
Court’s legal conclusions ….” Checkpoint Sys., Inc. v. Check
Point Software Techs., Inc., 269 F.3d 270, 279 (3d Cir. 2001).
The determination of “[w]hether a contract is ambiguous is an
issue of law subject to plenary review.” Mylan Inc. v.
SmithKline Beecham Corp., 723 F.3d 413, 419 (3d Cir. 2013).
And we review the interpretation of an unambiguous contract
de novo. See Tamarind Resort Assocs. v. Gov’t of Virgin
Islands, 138 F.3d 107, 110 (3d Cir. 1998) (“[I]t is a
fundamental principle of contract law that ‘disputes involving
the interpretation of unambiguous contracts are resolvable as
a matter of law[.]’” (citation omitted)).




                                11
Westinghouse Elec. Corp., 66 F.3d 604, 614 (3d Cir. 1995).
Ambiguity arises when language “is obscure in meaning
through indefiniteness of expression or has a double
meaning.” Id. “A contract is not ambiguous if the court can
determine its meaning without any guide other than a
knowledge of the simple facts on which, from the nature of
the language in general, its meaning depends ….” Id.
(quoting Samuel Rappaport Family P’ship v. Meridian Bank,
657 A.2d 17, 21–22 (Pa. Super. Ct. 1995)).10

       From the outset, the dealings between Sköld and
Galderma’s       predecessor   in    interest,   CollaGenex,
demonstrated a clear intent that CollaGenex would own the
trademark at issue. As the 2001 letter of intent put it: “[a]ll
trade marks associated with [Restoraderm intellectual
property and products] … shall be applied for and registered
in the name of CollaGenex and be the exclusive property of
CollaGenex.” (App. at 1456.) That intent was confirmed
again in the 2002 Agreement, which said that, upon
application with the PTO for registration of the Restoraderm
mark, CollaGenex would be the sole owner of the mark. The
language of the agreement is straightforward: “[a]ll trade
marks applied for or registered (including ‘Restoraderm’)
shall be in the sole name of CollaGenex and be the exclusive
property of CollaGenex during the Term [of the agreement]
and thereafter[.]” (App. at 1465.)

       Beyond broadly affirming that any trademarks applied
for during the term were the sole property of CollaGenex, the
2002 Agreement explicitly identified the Restoraderm mark.

      10
         It is undisputed that both the 2002 and 2004
Agreements are governed by Pennsylvania law.




                              12
Accordingly, by the terms of the agreement, when
CollaGenex applied to register “Restoraderm,” the mark
became CollaGenex’s sole property. And, when the 2002
Agreement said the Restoraderm mark would “be the
exclusive property of CollaGenex during the Term [of the
agreement] and thereafter[,]” it demonstrated clearly the
parties’ intent that the mark was to remain CollaGenex’s
property, regardless of any termination of the agreement.
(App. at 1465.)

        That conclusion is confirmed by another provision in
the 2002 Agreement. Because it created rights that would
outlive its term,11 the agreement included a provision
addressing those rights, titled “Term and Termination and
Reversion of Rights.” (App. at 1468.) That provision stated
that “[a]ny termination [of the 2002 Agreement] … shall not
affect in any manner vested rights of either party arising out
of this Agreement prior to termination.” (App. at 1469
(emphasis added).) In other words, the 2002 Agreement
unambiguously stipulated that, in the event of any
termination, vested rights would survive. CollaGenex’s right
to Restoraderm vested upon its application for registration of
that mark, and when the parties voluntarily terminated the
2002 Agreement that right remained unaffected. The survival
provision reinforces that the transfer provision is not
susceptible to another reasonable interpretation. Thus, the
2002 Agreement plainly and permanently transferred to

      11
           “Term,” as used in the trademark transfer provision
of the 2002 Agreement, was defined as “the term of this
Agreement and any extension thereto as defined herein.”
(App. at 1458.) The term of the Agreement was tied to the
life of patent rights Sköld had acquired.




                             13
CollaGenex all ownership rights in the Restoraderm mark,
once application to register the mark was made.

        The 2004 Agreement did not change that. The subject
matter of the 2004 Agreement was limited to “Restoraderm
Intellectual Property.” On its face, that might appear to
include trademarks, but the term “Restoraderm Intellectual
Property” is precisely defined and limited to patent rights,
know-how, and the right to enforce those proprietary rights.
To his credit, Sköld acknowledges that, in the 2004
Agreement, “[t]he definition of ‘Restoraderm Intellectual
Property’ did not include trademarks.” (Sköld Opening Br. at
10.) That concession is sensible since the 2004 Agreement
does not identify or address the Restoraderm mark in
particular, nor does it address trademarks generally. While
the 2004 Agreement may have been designed to replace and
terminate the 2002 Agreement, it cannot fairly be interpreted
as recovering ownership of the Restoraderm trademark for
Sköld. Not a word is said about such a significant step. The
mostly boilerplate integration clause in the 2004 Agreement
did not silently unwind the vested trademark rights, especially
given the parties’ very plain statement in the 2002 Agreement
that, in the event of a termination of that earlier agreement,
the ownership rights in the Restoraderm mark would remain
vested. See Int’l Milling Co. v. Hachmeister, Inc., 110 A.2d
186, 191 (Pa. 1955) (“The presence of an integration clause
cannot invest a writing with any greater sanctity than the
writing merits[.]”).

      To the extent the integration clause in the 2004
Agreement strayed from boilerplate language, it supports
Galderma’s ownership of the mark, by succession to
CollaGenex’s rights. The clause states that it “cancels and




                              14
supersedes any and all prior negotiations, correspondence,
understandings and agreements (including the [2002
Agreement]) whether oral or written, between the Parties
respecting the subject matter hereof and thereof; provided that
nothing in this Agreement shall replace, supercede [sic],
cancel or modify any prior agreements or assignments
between the Parties that have been filed with the United
States Patent and Trademark Office.” (App. at 1495.) The
clause thus carved out certain rights arising from the 2002
Agreement that would not be superseded or otherwise undone
by the 2004 Agreement, namely, agreements and assignments
registered with the PTO. Although the 2002 Agreement itself
was not filed with the PTO, Sköld does not argue that
CollaGenex’s ownership, documented at the PTO, is excluded
from the 2004 Agreement’s intention to not disturb or
otherwise affect rights memorialized at the PTO, and we see
no sound reason why it would be.

       In short, it is apparent that, rather than voiding
CollaGenex’s ownership of the mark by implication, the
parties intended to and did confirm that CollaGenex owned
the Restoraderm mark. Galderma later succeeded to those
vested rights.

       Despite the conspicuous absence of any language
about trademark ownership in the 2004 Agreement, Sköld
nevertheless argues that the 2002 transfer of the mark was
undone by the 2004 Agreement. He further contends that the
2004 Agreement, sub silentio, both returned the mark to him
and simultaneously retransferred the mark to CollaGenex
under the “goodwill” provision of that agreement, but only




                              15
provisionally.12 For two reasons, we disagree that any such
ownership ping-pong took place.          First, as already
emphasized, the 2002 Agreement specifically provided that
“any termination … shall not affect in any manner vested
rights[.]” (App. at 1469.) Thus, when that agreement
terminated, CollaGenex continued to own Restoraderm,
absent some clear documentation that ownership was
changing hands again. There is nothing of the sort.13

      Second, we reject Sköld’s interpretation of the phrase
“hereof and thereof” in the 2004 Agreement’s integration
clause to include all subject matter in either the 2004
Agreement or the 2002 Agreement.14 Sköld, 2016 WL

      12
            The 2004 Agreement provided, in the event of
termination by Sköld or CollaGenex, that CollaGenex would
return certain assets, including related goodwill, to Sköld.
      13
           Accordingly, at summary judgment, the District
Court erred in concluding that the goodwill provision was
subject to two reasonable interpretations – i.e. the term
included Restoraderm or the term did not include
Restoraderm – requiring further fact-finding. Sköld, 2016
WL 724755, at *5-6. Because CollaGenex’s ownership of the
mark survived termination of the 2002 Agreement, Sköld had
no rights to Restoraderm when he executed the 2004
Agreement. Therefore he could not have transferred the mark
under the “goodwill” provision or any other.
      14
          To repeat, that phrase appears in this context: “[The
2004 Agreement] … cancels and supersedes any and all prior
negotiations, correspondence, understandings and agreements
(including the [2002 Agreement]) whether oral or written,




                              16
724755 at *2. That phrase – “hereof and thereof” – includes
only the subject matter shared between the two agreements.
To interpret it otherwise, to include any subject matter in
either agreement, would negate the difference between
“hereof and thereof” and “hereof or thereof.”              The
conjunctive phrase includes only shared subject matter and
the disjunctive phrase includes any subject matter. Indeed, as
a general matter, integration clauses are meant to act as
“conclusive evidence that the parties intended to supersede
any prior contract on the same subject matter.” ADR N. Am.,
L.L.C. v. Agway, Inc., 303 F.3d 653, 658 (6th Cir. 2002)
(emphasis added). Since the 2002 Agreement encompassed
trademarks, expressly including Restoraderm, and the 2004
Agreement did not, the prior transfer of Restoraderm is not
contained in “the subject matter hereof and thereof” in the
2004 Agreement’s integration clause. (App. at 1495.) So,
even if one thought that a property right like the one at issue
here, documented at a government agency and announced to
the world, could be divested by broad and non-specific
language in an integration clause, the 2004 Agreement did not
affect CollaGenex’s (and hence Galderma’s) ownership of
Restoraderm. See Kreiss v. McCown De Leeuw & Co., 37 F.
Supp. 2d 294, 301 (S.D.N.Y. 1999) (finding that provisions in
a new agreement superseded provisions in an older agreement
only to the extent that they covered the same subject matter
even where the new agreement contained merger and



between the Parties respecting the subject matter hereof and
thereof; provided that nothing in this Agreement shall replace,
supercede [sic], cancel or modify any prior agreements or
assignments between the Parties that have been filed with the
United States Patent and Trademark Office.” (App. at 1495.)




                              17
integration clauses providing that the agreement “supersedes
all prior arrangements or understandings … with respect
thereto.” (alteration in original)).

      Accordingly, based on the unambiguous language of
the 2002 Agreement, Galderma, as successor-in-interest to
CollaGenex, became the rightful owner of the Restoraderm
mark and remained so after the termination of that agreement.
The 2004 Agreement did nothing to alter those rights. We
reach that conclusion as a matter of law, based on the
unambiguous language of the contracts.

       Given that Sköld’s unjust enrichment claim was
premised on Galderma’s use of the “Restoraderm trademark
and related good will” being unlawful (App. at 1184), he was
required to establish ownership of the mark to prevail.
Because Galderma, not Sköld, is the rightful owner of the
mark, its use of the mark is not unlawful or unjust, and
Sköld’s unjust enrichment claim fails. And, since Sköld’s
claims for infringement, false advertising, and unfair
competition were also premised on ownership of the mark,
each of those claims must fail as well.

III.   CONCLUSION

      For the foregoing reasons, we will affirm the District
Court’s judgment in all respects, except for Sköld’s unjust
enrichment claim, which we will reverse.




                             18
