Innovation Ventures, LLC v. Bhelliom Enterprises Corp.
ORDER denying 88 Motion to Amend/Correct; finding as moot 89 Motion to Strike. Signed by District Judge Lawrence P. Zatkoff. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
INNOVATION VENTURES, LLC,
Case No. 09-13783
Hon. Lawrence P. Zatkoff
BHELLIOM ENTERPRISES CORP.,
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on October 5, 2012
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff’s Motion to Amend/Correct Judgment [dkt
88], brought under Fed. R. Civ. P. 59(e). Defendant did not respond to Plaintiff’s Motion, but
filed a separate Motion to Strike Plaintiff’s Motion [dkt 89]. Defendant’s Motion has been fully
briefed. The Court finds that the facts and legal arguments are adequately presented in the
parties’ papers such that the decision process would not be significantly aided by oral argument.
Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motions be
resolved on the briefs submitted.
For the reasons set forth below, Plaintiff’s Motion to
Amend/Correct Judgment is DENIED and Defendant’s Motion to Strike Plaintiff’s is DENIED
Plaintiff challenges the Court’s July 26, 2011, order, alleging that the Court applied the
wrong standard in finding Defendant was not liable for false advertising under the Lanham Act.
To establish a claim for false advertising under the Lanham Act, a plaintiff must prove
(1) the defendant has made false or misleading statements of fact
concerning his product or another’s; (2) the statement actually or
tends to deceive a substantial portion of the intended audience; (3)
the statement is material in that it will likely influence the deceived
consumer’s purchasing decisions; (4) the advertisements were
introduced into interstate commerce; and (5) there is some causal
link between the challenged statements and harm to the plaintiff.
Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 323 (6th Cir. 2001) (citing
Am. Council of Certified Podiatric Physicians and Surgeons v. Am. Bd. of Podiatric Surgery,
Inc., 185 F.3d 606, 613 (6th Cir. 1999)). Focusing on the “causal link” element, the Court, in its
July 26, 2011, order, found that:
Plaintiff has failed to demonstrate a genuine dispute regarding the
causal link between the alleged false advertising and harm to
Plaintiff. See IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368,
376 (5th Cir. 2002) (affirming grant of summary judgment on false
advertising claim where, even if the challenged statement were
literally false, the plaintiff presented no evidence indicating that
consumers would have bought its product instead of the
defendant’s product in the absence of the defendant’s allegedly
As Plaintiff asserts:
[C]ases involving injunctive relief and those
seeking monetary damages under the Lanham Act
have different standards of proof. A plaintiff suing
to enjoin conduct that violates the Lanham Act need
not prove specific damage. In contrast, courts
require a heightened level of proof of injury in order
to recover money damages. Porous Media Corp. v.
Pall Corp., 110 F.3d 1329, 1335 (8th Cir.1997)
Here, Plaintiff presents no proof, through loss of sales or
otherwise, that it incurred specific damages due to any of the
allegedly false advertising. At most, Plaintiff’s expert makes the
unsupported assertions that ‘[s]ome of [Defendant’s] sales no
doubt were drawn from consumers who might have purchased 5
Hour Energy’ and that ‘it is completely logical for a consumer to
be attracted to [Defendant]’s product.’
Dkt. 86 at 11–12 (emphasis added).
Plaintiff now claims that the Court erred by:
requir[ing] [Plaintiff] to come forward with evidence of a specific
loss of sales resulting from [Defendant’s] false advertising to show
a ‘causal connection’ between the advertising and harm to
[Plaintiff]. Such evidence, however, is not a prerequisite to a
finding of liability for false advertising or the issuance of an
injunction under the Lanham Act. To show a ‘causal connection,’
the Lanham Act requires [Plaintiff] to show only that it ‘believes
that . . . [it] is likely to be damaged by [the false advertising].
Dkt. 88 at 12 (emphasis added).
III. LEGAL STANDARD
A court may grant relief pursuant to Rule 59(e) only where there is: “(1) a clear error of
law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Henderson v. Walled Lake Consol., 469 F.3d 479, 496 (6th Cir.
2006) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).
The Court finds that a simple reading of its July 26, 2011, order, shows that Plaintiff was
not required to show a “specific loss of sales” to establish a causal connection between the
alleged false advertising and Plaintiff’s harm. Rather, the Court’s order stated, in no uncertain
terms, that Plaintiff failed to provide any proof—“through loss of sales or otherwise”—that it
incurred injury as a result of the allegedly false advertising. The Court thus properly found that
Plaintiff “failed to demonstrate a genuine dispute regarding the causal link between the alleged
false advertising and harm.”
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend/Correct
Judgment [dkt 88] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiff’s Motion to
Alter or Amend Judgment under Fed. R. Civ. P. 59(e) [dkt 89] is DENIED as moot.
IT IS SO ORDERED.
Date: October 5, 2012
s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
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