mr jones whenever you're ready materiality there is neither a consumer survey nor testimony of any actually confuse consumers there's no evidence of harm there was no evidence of divergence sales no evidence of pretrial corrective advertising or plans for corrective for prospective corrective ties in the one hundred carwashes claim was alleged to be a misleading advertisement meaning i t w had to satisfy all five elements of this court's pizza hut test to prove liability i t w failed to meet three of the pizza hut factors but the elements you those were correct you aren't disputing the legal correctness this is purely that in spite of being told what the elements were the jury had some disarray in how they were quiet but this jury you did get the instruction that oblige the jury to find a substantial segment was deceived correct that's believe that's correct ron so it's just a very high standard that you're facing if this is just a purely evidentiary attack you're out of there it's under pizza hut they have i to do you has to prove it each one of the five factors there is flat out no evidence on three of the five and under deception on the materiality and on the harm ok so go ahead with your story you don't know how many consumers would have be an appreciable number and i believe that there's at least one case that talks about a twenty percent number it would have to be something like that in this case there's nothing i mean any percent of what's you know when you say twenty percent of consumers who were deceived by the by the misleading advertising how would they be identified total number of people who purchased the product twenty percent of them i think that that's to me the overriding issue on that particular part of your appeal is how much evidence is required i know there's some mention of a single blog post or someone who had tried to do the one hundred carwashes or something of that sort and commented on it so the question really becomes a question of quantity in terms of evidence you said that there is there there is void the record is void of evidence on three different factors and a pizza hut but we do have the one blog post i thought the nature of the argument was that there was insufficient evidence for which the jury could make that finding that's correct your honor there's there were there is insufficient evidence of harm and there is insufficient evidence of deception and materiality and on the under pizza hut they need to double you needed to show actual consumer deception because they were seeking monetary damages ok one but explain to me the twenty percent and i'll let you move on to what you're about to say you just said twenty percent i didn't quite understand so i think that by believe the question that was put to me was how many consumers would have to be deceived for there to be liability right and i said that it needs to be an appreciable number and one case is namespace you right now talk about a twenty percent number how would you get there you know that to be true a consumer survey is no consumer survey here certainly if we're talking about actual confused consumers there would need to be an appreciable number and what is that it it would depend on on the market it would depend on amber of consumers some of the things judge in the court that you mention certainly the one video that we have here that's not enough and and i would not agree that that is a confused consumer because it's a it was a video reviewer who was testing the product and was not testing it for the one hundred for purposes of the one hundred  washes so i think there's a there's a complete lack of evidence on that point on material and so on consumer deception they had to show actual consumer deception because they were seeking monetary damages and there is no actual consumer deception here on materiality there's no evidence that the hunter carwashes claim mattered to consumers in their purchasing decision your client advertise that this product keeps its positive effect on the vehicle for one hundred carwashes if it wasn't material to the decision to buy it  beg the question when you say there's no evidence of materiality the fact that your client is offering it as a reason the buy the product isn't that evidence of materiality no it's not your honor the mere advertising of a claim does not make it material and because otherwise if it did there or there wouldn't be a materiality element in the pizza hut tess and every single advertisement just by virtue of it being made would be material so you know so that's the only material if you can prove that they relied on the advertising to be deceived confused it's yes it's it would be material if the consumers made that the purchasing decision of the product that they would have to prove their own which would be i to give these burden to prove and they did not do so here that no no evidence on that point whatsoever  w points to some testimony from its senior executive james stone and that is just testimony about general harm to the rain experience eight lines of testimony there's there's no nothing in his testimony that quantified the amount of damage to the brand and certainly nothing in his testimony that tied that damaged and specifically to the one hundred carwashes claim and so that would be insufficient so turning to the financial remedies there is a permanent injunction where you jump to that what what is your best because the circuits have explored these elements of misleading advertising what's your best circuit for any of the three elements you've just discussed with your best authority way or a court is set as a matter of law that's not enough what case would you point to even outside the th circuit i would point to pizza hut but in pizza hut in i q we just we just articulated there has to be a significant segment of consumers to see but the court didn't say this is insufficient as a matter of law said that as a matter of law is not an appreciable enough number of consumers your honor i don't have a case a great to hand you know that's right it's just that seems to be the direction of your argument is  there may be someone who did this this who said he was surprised and made the statement that he did but you're saying that's not enough would two or three be enough where we seeing courts say as a matter of law that's not enough but i but we've we've covered it a bit could you what about on the harm i thought under it i didn't think that you had to show actual losses to show harm in lanham a case for harm there's there's two aspects of harm that are in this case right there's the harm that's necessary for the financial remedies there's the harm that's necessary the liability under pizza hut's and for the harm for liability you may not have to show actual last say oh yes but there's gotta be some economic injury there's got to be some economic harm and in i q products it's phrase this court phrase that in terms of whether consumers would have purchased the plaintiffs products instead of the defendants product but for the advertisement ok so that's the harm that we're talking about there could be two of them were right on the last two times longer that's a comparative advertisement the one hundred carwashes which is the ad claim that i'm discussing here that is not a comparative claim that is is specifically a cl about our own product of our own product that it is durable enough to withstand one hundred dollars car washes so on the financial remedies there's a permanent injunction in this case and  claims in connection with rainbow and the and so this permanent injunction remedies are still aims actions anything and she will leave that would then be you know awarded has to be subject to the principles of equity cannot be punit equitable and punitive and the discourse middle ward should be vacated in its entirety and so that would be for across all three of the advertising claims that were made and the the in this  the failure to prove diverted sales makes discouragement an inequitable when fall into this course holding in retractable technologies if the discouragement is equitable under public beach then actual harms it looks to see whether there's been any actual harm to the plaintiff and in wichita technologies this court stated that disk or judgement without harm is an uncommon remedy in a false october th opinion because it said it did not need to consider harm as to damages because the jury found that i t w was harmed by the claims and so what the district court does is it is it says there's mounted willfully on the last two times longer claim for example or not and not the one hundred carwashes claim it's just a no on the corrective advertising corrective advertising is a compensatory  award and it should be vacated here because there's no evidence of pretrial corrective ever ties ing and on the prospect of corrective advertising there's no evidence in the record that they have any plans to run  what that would cost what it would look like and very importantly what the nesa jing would be in the corrected bever ties and it's just an award the jury award of correct advertising that was modified by the district court it's strictly a windfall it is going to take the money they're just going to put it in their pockets and they're not going to run any correct about advertising and you don't dispute that had there been evidence of prospective please the court my name is brad the cone and i represent the appellee across appellant illinois tool works after a value waiting twelve witnesses and seventy six exhibits the jury in this case reached a unanimous verdict this morning i hope to discuss evidence supporting the jury's verdict on the one hundred carwashes claim evidence supporting the jury's verdict on and on willfulness why a monetary award was proper and lastly why the district court erred when it would use the jury's corrective advertising award starting with the one hundred car washes claim i'd like to address one of the issues that you're on is that raise which is the question about deception and how much deception evidence is necessary this circuit has never established and we're not aware of any circuit that is established a bright line rule as to how much deception evidence of deception is necessary the the standard says that you either need evidence of actual deception or evidence of a tendency to deceive and oftentimes the evidence on the tendency to see this done by a survey and oftentimes the surveys have certain thresholds you might want to keep like one thousand two hundred and fifteen or twenty percent but in terms of when you when you claim full with actual deception evidence we're not aware of this quarter a court setting a bright line rule is that how many instances of actual deception you need to have any we did your honor and that's the on line that's the on line consumer review your substantial can't be won i mean the law of the case here that the instruction on the element was substantial yes that's correct and so how can substantial be one that just well  so it's either actual deception evidence or a tendency to deceive a substantial number of concern that's that's from pizza hut but as i thought the jury was instructed here it didn't distinguish a car help the two you just accepted an element that said the court the dury had to find substantial numbers it had to as the instruction leads you either have to have evidence of actual to self deception or a tendency to deceive a substantial number of consumers ok well i'll look confused i thought in this case the jury was told it had to find deception as to a substantial number yes or no the elements yes your honor that so therefore i'm interrupting you just to make it might get my point out but disagree with me if i'm wrong therefore it doesn't seem just intuitive to ask what did you have besides one right so that the jury looked at this piece of that they actually looked at it it's a seven minute online review the jury duty twice with two different witnesses and the jury was entitled to that to evaluate this instance of deception and whether or not it reflected what typical consumers would experience but so we understand that is that what you  we had evidence of the evidence of deception we also argued that actual deception can also be inferred from the bad faith intent and so here we do have evidence of a bad faith and you run into the difficulty of that wil finding wasn't particular eyes has to each claim on the jury but the the jury wasn't titled if you look at the situation what happened is that was stolen century based its claim on an unrealistic consumer experience and withheld that information from the from the consumers and just again on that if you're for if you fall back to that argument did the jury get told that it can presume deception from willfulness i don't think it was up to the germans not instructed on it in some circuits have said that but that's again isn't what the law was given in this case that's correct so i do think you do you're going to have to show a substantial number well the the way the test reads is that you either need actual deception evidence or a tendency to see if a substantial number and no court has ever set a bright line rule or elevated quantity over quality and so here we have a powerful piece of evidence that the juries so i mean how hammer on this point that you say that's what the test is you're drawing it from pizza hut that's correct i'm asking what this jury was told and history wasn't told they could do one of the other i don't think this jury was told you've got to find that a substantial number of consumers i'm well beat the jury instruction was drawn from the from you know what was consistent with the drawing from the pizza hut of you are you asking us to adopt the presumption now as our circuits  was actual deception obviously the court can do that your argument is that this record has fission evidence without the presumption we believe that's correct your honor to have sufficient without the presumption but if there were any question on that point  certainly evidence does support the proposition that with an intent with the with the intent to deceive that was there the cause of the the the reliance on the unrealistic minutely unrealistic consumer experience to tell consumers and consumers want to know how long the products last that's what consumers want to know interest only get to know you are going to get there but what is the single best piece of evidence showing bad faith to support that wilfulness finding what is the single in this record as it was a trial what would you point to as the most or a glaring well i think it's that it's that with the single most glaring point is that admitted that they relied that for their claim they were relying on a test that they knew and admitted was not a realistic consumer experience and bad timing so that at the lab person do the one hundred carwashes  two days it seems like it could have been they thought it was just dura billeted and then then admittedly you may have chrome that it was well the jury found that you did so that it was misleading because the consumer would think that really meant car washes over a lot of time they don't say a product in the last two to three months they say lasts over one hundred car washes and then they don't provide an explanation of disclosure for why they're saying that they know internally it's based on an unrealistic consumer experience it was no car washes over the course of two days and then in the t v commercial they show the phrase one hundred car washes and they show a car emerging from a car wash with scrubbers and brushes and you can see that image on on page seven of our brief well so i got a little is means water repellent since and so what happens when you put this material on your car this water repellent on your car is that it a braids over time and that's what was came out during the trial is that a bra over time either because of weather or wiper blades or other contact and so when you run a car through one hundred touchless car washes and nothing's touching it but water it's going to it's not going to braid at the same level as when you have the record reflect that when you do hundred car wash plane into the admittedly false last two times longer plane and so there was enough evidence there for the jury to infer that that one hundred dollars carwashes claim was also going to be on the issue of of willfulness there was some discussion about the form of the jury instruction we don't believe it was plain arab it could have been done differently but it wasn't playing air importantly the the d whether or not that finding of willfulness has any value in this case in the district court apparently believe that having heard the evidence that the way that the jury instruction was worded was sufficient for its purposes and certainly rest on him did not object to the wording of this jury instruction during the jury charge confer ask a question about the damages yes you know about the amount that was awarded for correcting the advertising but you didn't get any you don't plan to do any so why would you be entitled to that award just to clarify when there was no evidence that we don't plan to reason that that the district court didn't require that in and other courts don't require that is because it creates litigation in litigation if you start running your corrective advertising before the juries even decided what claims are false  planned out your corrective advertising without knowing what claims are false what the injunction is going to be how much money you'll have to spend on the advertising campaign what you pay what you would do is create litigation league ation of the parties will fight a trial about whether or not what you did or what you planned to do is does it doesn't make it justified is it correct why did you spend the money here why aren't you plan to spend the money there i t w is prepared to wait until the final decision in this case and then plan out so it's not it it's it's that they don't know yet what award they will be and what claims will ultimately be found to be false or misleading that needs to be incorporated into whatever so the the jury heard the jury heard evidence about what let me back up and say a corrective advertising award can be looked at in two ways one is can you quantify the injury to reputation and the other way you could look at it is what is a fair estimate of the entire amount we said if if if if the value of what you got was one point three million dollars cars that you spent we should be in thailand and the jury awarded seventy percent of them out and then what and then what happened is after trial the judge came in and applied a twenty five percent rule that i t w had wanted to present to the jury it's a guideline we believe a twenty five percent guideline and we wanted to discuss with the jury whether or not it was appropriate under the circumstances of this case to follow the twenty five percent guy language apart from it in other cases juries and courts depart from the twenty five percent guideline we want to discuss that with the jury was still only a objected to that instruction the jury didn't get it and then after trial when restoring was dissatisfied with the amount of the corrective advertising award they went to the court and said oh now we think that the that the twenty five percent guideline should be imposed and so that's the difference there that the cross appeal where the differences in the approach there was a discussion on profits about the retractable technologies case and while they were tractable technologies there was no more profits and no evidence of diverted sales and here we don't have evidence of deferred sales but this case differs from retractable technologies in at least three critical ways the st is that in our case the district court found the discords going to profits was appropriate whereas in retractable technologies it was the other way around just to court found the disclosure profits was not appropriate in this case the district court found that the injunction was not sufficient to remedy the harm in the tractable technologies the lower court found injunction was sufficient to remedy the harm and lastly in this case i t w tested its proof of damages to the jury to put the question to the jury and the get and the jury found that discourse for profits was appropriate and the jury noted that in its in its october th order in this case in retractable technologies this court pointed out that the plaintiff in that case didn't put the proof it's proof of damages to the jury instead it waited until after trial to raise the issue of discourse when a prophets so the trackball technologies case while it does have some bearing on this the circumstance of the facts are quite different in terms of what was under happening underlying at the district court level on the question of whether or not the profits were traded of all the lanham act violation the jury heard quite a bit of evidence on that the jury saw in the internal rust only and document where it says that the described the plan was to quote attract and steal rain x s current loyal following and quote the jury learned that the television commercial was an important part of the launch of rain breland important for a relic to break into the market the jury learned that the last two times longer claim from a stone's perspective would set ring bell apart and that's a false claim that is not even the challenge here and the jury also learned that the one that the harm to the rain x brand from the falls advertising is really to the brand as a whole not just the brand with respect to water repellents and the jury also heard that when i took government does its advertising while it focuses on some innovation issues its advertising the boost the rain that's brand as a whole and also water repellent specifically so the jury heard evidence about how i t w advertises and how the the on the issue of the cross appeal part of the issue is also just a matter of fundamental fairness we believe the defendant can't have it both ways if a stone felt that the twenty five percent guideline was a theory for limiting damages than it was their obligation to take that to the jury and have the jury decide whether or not there was a fair limitation on the damages it would not that was not appropriate to withhold them from the jury to object to i to gov use instruction on that point and to deny i to doug the opportunity to share that and discuss that with the jury but isn't that to a large  extent legal and an application of a legal principle as in so far as the amount of attorney's fees of available for recovery are i should say advertising available for recoveries and that rooted in some of the case  misread that well we cited case law your honor for the proposition that if a defendant feels that there is a limitation on damages then that's something that they have to raise and here we believe that this was an issue for the jury to decide whether or not to depart with what that there is a twenty five percent guideline in that it's something they could use but they could depart from it one way or another they don't even have to go up to twenty five percent if they want but i just a couple of points your honor first with respect to deception the tendency to deceive a question that was put the jury was instructed on the one hundred carwashes claim that i t w had to show the statement actually deceived or has a tendency to deceive a substantial segment of consumers so two things on here is that one is that is that i t w had to show actual deception because it seeking monetary damages under pizza hut with respect to the question that was put to me earlier about what is a substantial segment in what are cases outside of the circuit there's a piece which we cited in our belief johnson and johnson which is in the  rd circuit which collects cases and says that twenty percent would be sufficient so that when we're talking about what is a substantial segment of potential consumers i think it's got to be that number you know twenty percent north of twenty percent nothing here that approaches that whatsoever in your closing argument did you make that exact argument to the jury you haven't heard there was twenty percent i don't believe we put the twenty percent number to the jury but you you you emphasize that they just heard from one person absolutely and that and as i said earlier you know i also would not agree that that one person which is this online video review that we're talking about it's not a consumer it's a video reviewer the person who's trying to get people to watches his video build up his traffic it's not a person a consumer who went purchase the product because of the one hundred carwashes claim there's no evidence in that video that that says that in when i did buy it and he said he was surprised we don't know if he bought it we don't know how we got it  it and he says that he he was not testing them under car washes claim he doesn't run it through a car wash it has nothing to do with on her car washes claim to be honest he's just checking to see how there's no internal documents there's nothing that talks about how we are trying to liam's trying to deceive consumers in fact the opposite is true they tried to mr lavery testified that he was trying to dodge his eyes crosses t's they took the product to the outside lab for testing of the last two times longer claim on the one hundred carwashes just claiming you asked about what is a touchless car wash these are this was a commercial and it shows if you go look at the car shaking from the force of the water and so that side in a brief on the twenty five percent corrective advertising cap there was no evidence in the record at all as to why they need to go cost twenty five percent since there is going to be corrective advertising the word should be limited to twenty five percent they don't say why they need more money they don't say that they're going to you know run