[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11374

Non-Argument Calendar

____________________

INSTANT ONE MEDIA, INC., 

Plaintiff-Appellee,

versus

EZFAUXDECOR, LLC, 

Defendant-Appellant,

Amber Shank,

Defendant.

____________________

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Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-00540-WMR

____________________

Before NEWSOM, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Instant One Media, Inc. and EZ Faux Decor, LLC both sell 

vinyl adhesive products to resurface countertops and appliances. 

They settled previous litigation in 2017 with an agreement that Instant One would pay EZ $175,000 and EZ would stop using the 

term “instant” within two words of the terms “granite” or “stainless.” Instant One then registered trademarks for “instant granite” 

and “instant stainless.” 

By 2018, EZ was violating that agreement and infringing Instant One’s trademarks. Instant One sued alleging a state-law 

breach-of-contract claim and a federal-law trademark-infringement 

claim. After receiving notice of the suit, EZ changed its websites 

without preserving copies. EZ also did not keep or produce change 

logs for its Amazon or EBay content. As a sanction for the spoliation of its own website, the district court ordered that the jury be 

instructed with a rebuttable presumption that EZ violated the settlement agreement and infringed the trademark on its website. 

The sanctions didn’t extend, however, to EBay or Amazon sales.

The district court granted partial summary judgment to Instant One as to liability for breach of contract. The liability for 

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trademark infringement and damages as to both claims went to 

trial. The trial consisted of only two witnesses. Instant One called 

its President to testify to the primary issues and its lawyer to testify 

to his fees. EZ called no witnesses.

A jury found EZ liable on the trademark claim. It awarded 

Instant One three types of damages: $275,000 actual damages for 

either the breach of contract or trademark infringement; $500,000 

in disgorgement on the trademark claim; and $260,000 in attorneys’ fees under a state-law fee-shifting statute. 

The district court then denied EZ’s renewed motion for 

judgment as a matter of law and entered judgment for Instant One. 

EZ appeals that denial with respect to each type of damages. 

We review the denial of a renewed motion for judgment as 

a matter of law de novo. AcryliCon USA, LLC v. Silikal GmbH, 

985 F.3d 1350, 1366 (11th Cir. 2021). We can grant the motion only 

if “there is no legally sufficient evidentiary basis for a reasonable 

jury to find for the non-moving party.” Id. 

After careful review, we affirm the disgorgement and attorneys’-fees awards. Because Instant One failed to provide sufficient

evidence of lost profits under either claim, we vacate the denial of 

the renewed judgment as a matter of law with respect to actual 

damages and remand that issue for further consideration. 

I 

Instant One’s President testified to Instant One’s actual damages—which she claimed were lost profits of $562,368. The jury 

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returned an award of $250,000. EZ argues the evidence was insufficient to support even this award for two reasons: specificity and 

causation. Given an error in the district court’s ruling on specificity, we remand for further consideration without addressing causation. 

EZ claims that the lost-profits calculation was unsupported 

and speculative. Instant One initially sought to submit an exhibit 

containing details for the $562,368 calculation along with 199 pages 

of receipts for advertising and consulting expenses. After a lengthy 

discussion outside the presence of the jury, including a voir dire 

examination of the President about the contents of the calculation, 

the court sustained EZ’s objection that the exhibit was hearsay. 

The next day, Instant One proceeded with the President’s testimony but used a revised exhibit that included only the receipts. 

And Instant One’s President never testified with specificity about 

how she arrived at the calculation. She stated the number multiple 

times. She testified that she provided the calculation to the defendants. But her testimony about the calculation process was limited 

to cross-examination and re-direct. During cross-examination, she 

discussed at a high-level how she estimated lost profits by considering lost sales and their associated expenses—but never quantified

those components. When asked for specifics, she several times responded, “I don’t remember.” On redirect, Instant One’s attorney 

solicited testimony confirming that the President knew enough 

about the company to make an educated estimate and that the 

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already 199-page exhibit would have been much longer if they included more detail.

In summary, Instant One provided (i) business records 

showing revenue from Amazon sales for three isolated months in 

2017 and 2018, (ii) testimony that sales from the two trademarked 

products were $2.3 million over the 31⁄2 year period, (iii) testimony 

that promotional expenses were $300,000 over the same period, 

and (iv) testimony that it calculated $562,368 in estimated losses 

after subtracting from a forecasted sales number (which it never 

provided) promotional expenses (of which it did provide evidence) 

as well as costs of goods sold, utilities, rent, payroll, and taxes (for 

none of which Instant One provided any evidence). Instant One 

did not provide a single financial statement or financial forecast.

When ruling on EZ’s renewed motion for judgment as a 

matter of law, the district court implied that Doc. 160-5 was a “document[] that show[s] . . . [the President’s] projected profits calculation” and cited Doc. 170 at 119:9–25 as containing the President’s 

testimony about the forecast. Critically, however, that testimony 

was from the voir dire about the excluded exhibit. The jury had

neither a version of Doc. 160-5 containing a projected profits calculation nor the President’s detailed testimony about the forecast. 

Instant One, therefore, failed to present sufficient evidence 

to satisfy Georgia’s state-law standard. In order to recover lost 

profits for a breach of contract, Instant One needed to “provide ‘information or data sufficient to enable [the trier of fact] to estimate 

the amount of the loss with reasonable certainty.’” AcryliCon 

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USA, LLC v. Silikal GmbH, 985 F.3d 1350, 1370 (11th Cir. 2021) 

(quoting Bearoff v. Craton, 830 S.E.2d 362, 373 (Ga. App. 2019)) 

(alteration in original). Where, as here, a plaintiff fails to show both 

“a track record of profitability” and “figures showing . . . anticipated 

revenues and expenses,” id. at 1371 (quoting Bearoff, 830 S.E.2d at 

373), the plaintiff cannot recover. 

Recovery for the state-law contract claim, therefore, is limited to actual expenses incurred—such as those documented in 

Doc. 160-5—which a jury could have concluded were caused by 

the breach.

Instant One also failed to satisfy the Lanham Act’s lower 

standard for establishing lost profits. Actual damages under the 

Lanham Act “are not rendered uncertain because they cannot be 

calculated with absolute exactness.” Ramada Inns, Inc. v. Gadsden 

Motel Co., 804 F.2d 1562, 1565 (11th Cir. 1986) (quoting BorgWarner Corporation v. York-Shipley, Inc., 293 F.2d 88, 95 (7th Cir.

1961)). “It is sufficient if a reasonable basis of computation is afforded.” Id. (quoting Borg-Warner, 293 F.2d at 95). Conclusory 

testimony about the estimated amount of profits and generic comments on her calculation process do not provide a sufficient “basis 

of computation” for a jury to determine actual damages under the 

Lanham Act.

We remand for the district court to consider whether actual 

damages other than lost profits adequately support the jury’s actual 

damages award and to consider, in the first instance, EZ’s causation 

arguments.

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II 

EZ also challenges the disgorgement award. At trial, Instant 

One produced evidence estimating gross revenue for EZ on its 

website, on EBay, and on Amazon. EZ challenges whether these 

sales were “attributable to” infringing conduct. In effect, EZ claims 

Instant One failed to carry its alleged burden to demonstrate gross 

sales from infringing products. But EZ misunderstands Instant 

One’s burden. 

“In assessing profits the plaintiff shall be required to prove 

defendant’s sales only; defendant must prove all elements of cost 

or deduction claimed.” 15 U.S.C. § 1117(a). The plaintiff’s burden 

is merely to establish business-wide gross sales and some instances 

of infringement. Wesco Mfg., Inc. v. Tropical Attractions of Palm 

Beach, Inc., 833 F.2d 1484, 1488 (11th Cir. 1987). Consistent with 

the Eleventh Circuit pattern charges, that is how the district court 

instructed the jury in this case:

In determining EzFauxDecor, LLC’s profits, Instant

One Media, Inc. is only required to prove 

EzFauxDecor, LLC’s gross sales. EzFauxDecor, LLC 

may then prove the amount of sales made for reasons 

other than the infringement.

Doc. 171 at 212; see also Eleventh Circuit Pattern Jury Instructions 

(CIVIL) § 5.13 at 11 (2022) (same). 

EZ failed to introduce evidence that any sales were not due 

to infringement. In its reply brief, it argues that the product titles 

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in Instant One’s exhibits show that the products weren’t infringing. 

But given that infringement could occur outside a product title and 

EZ’s failure to track changes to product listings on Amazon and 

EBay, the evidence to which EZ points wouldn’t preclude a reasonable jury from disagreeing with EZ. We therefore affirm the 

district court’s denial of the renewed motion for judgment as a matter of law with respect to the disgorgement award.1

III 

Georgia law allows juries to award attorneys’ fees when the 

plaintiff requests them and “the defendant has acted in bad faith, 

has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” O.C.G.A. § 13-6-11. In reviewing this 

claim on appeal, we respect Georgia’s decision to “place[] the question of attorneys’ fees within the province of the jury,” and we 

“should not vacate such an award unless there was absolutely no 

evidence to support it.” LaRoche Indus., Inc. v. AIG Risk Mgmt., 

Inc., 959 F.2d 189, 193 (11th Cir. 1992); see Am. Med. Transp. Grp., 

Inc. v. Glo-An, Inc., 509 S.E.2d 738, 741 (Ga. App. 1998).

Here, the jury determined that EZ’s use of the trademarks—

in breach of the contract—was willful. This determination was 

based on evidence of bad faith in the underlying transactions—for 

1 Instant One’s disgorgement award is not affected by the ruling on actual 

damages. Lanham Act disgorgement is available without showing actual damages. See Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343, 

1352 (11th Cir. 2019).

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example, emails stating a desire to hide their use of the terms. We

therefore affirm the district court’s denial of the motion for judgment as a matter of law with respect to attorneys’ fees.2 

IV 

Because evidence supports the jury’s disgorgement and attorneys’-fees awards but the district court erred in ruling on the 

actual damages award, we affirm in part, vacate in part, and remand for further proceedings.

AFFIRMED in part, VACATED in part, and REMANDED.

2 We only address EZ’s argument that there was insufficient evidence of bad 

faith. We do not address—and leave for subsequent proceedings—the issue 

whether our ruling on actual damages affects the attorneys’ fees award. See, 

e.g., Steele v. Russell, 424 S.E.2d 272, 273 (Ga. 1993) (“[E]xpenses of litigation 

recoverable pursuant to OCGA § 13–6–11 are ancillary and may only be recovered where other elements of damage are also recoverable.”).

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