1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0187p.06 

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________
I NNOVATION V ENTURES , LLC, Plaintiff-Appellee ,

v . N2G D ISTRIBUTING , I NC ., a California Corporation, and A LPHA P ERFORMANCE L ABS , a Nevada Corporation, Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ │ ┘ Nos. 12-1635; 13-1817

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit No. 2:08-cv-10983—Paul D. Borman, District Judge. Argued: June 18, 2014 Decided and Filed: August 14, 2014 Before: KEITH, CLAY, and McKEAGUE, Circuit Judges.

_________________ COUNSEL ARGUED: James K. Thome, VAND EVEER GARZIA, P.C., Troy, Mi chigan, for Appellants. Mark A. Cantor, BROOKS KUSHMAN P.C., S outhfield, Michigan, for Appellee. ON BRIEF: James K. Thome, Timothy J. Connaughton, VANDE VEER GARZIA, P.C., Troy, Michigan, for Appellants. Mark A. Cantor, Marc Lorelli, BROOKS KUSHMAN P.C., Southfield, Michigan, for Appellee.

_________________ OPINION

_________________ CLAY, Circuit Judge. These consolidated ap peals arise from a jury trial followed by a contempt proceeding. At trial, Defendant s N2G Distributing, Inc. (“N2G”) and Alpha 

### >No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 2
Performance Labs were found to have infrin ged the trademark and trade dress of 5-hour ENERGY (“FHE”)—a product sold by Plaintiff Innova tion Ventures, LLC—in violation of the Lanham Act, 15 U.S.C. § 1051, et seq. The district court then held Defendants in contempt, along with their owner, Jeffrey Diehl, for violati ng the permanent injunction entered after trial. Defendants appeal many of the district court’s rulings, but for the reasons that follow, we AFFIRM the district court in full.
BACKGROUND
A. 5-Hour ENERGY Plaintiff is the marketer, distri butor, and seller of FHE. FH E is an energy shot, which is an energy drink sold and consumed in small por tions. Plaintiff began selling FHE in August 2004 after just a few months of development. FHE was not the first energy shot to hit the market, but it did have a unique angle. While other energy drinks targeted young consumers, Plaintiff marketed FHE to working adults. Plai ntiff hoped that these consumers would come to see FHE as a replacement for an afternoon cup of coffee or a caffeinated soda. Plaintiff’s 2004 sales of FHE totaled, at mo st, a few hundred thousand dollars. In 2005, sales were $3 million. Sales increased astronomica lly from there. Plaintiff sold over 200 million bottles of FHE between 2006 and 2008. By Ma rch 2009, FHE controlled nearly 70% of the market for energy shots. Sales of FHE totaled over 460 million bottles in 2011, which translated into $620 million of revenue. Plaintiff budgeted a pproximately 25% of its gross sales to go to advertising for FHE. Thus, Plaintiff spent over $40 million in advertising in 2008, and over $120 million in 2010. Plaintiff also took steps to protect the FHE mark. In J une 2004, Plaintiff submitted “5- hour ENERGY” for trademark registration with the U.S. Patent and Trademark Office (“PTO”). The PTO rejected Plaintiff’s application in January 2005, deeming the mark too descriptive to be eligible for trademark protection. 1 Plaintiff placed FHE on the Supplemental Register in

1 By contrast, we have held that the “5-hour ENERGY” mark was “suggestive and thus protectable” by at least March 2006. Innovation Ventures, LLC v. N.V.E., Inc. , 694 F.3d 723, 730 (6th Cir. 2012).No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 3 September 2005. 2 Plaintiff eventually secured a tr ademark for “5-hour ENERGY” in August 2011, shortly before this case went to trial. Plaintiff also attempted to protect its mark and market position thr ough litigation. While Plaintiff was not the first ener gy shot on the market, it was th e first to achieve widespread success. This success attracted hundreds of competit ors. Plaintiff had to defend suits from other market participants who believed Plaintiff was infringing on protected marks. And Plaintiff itself sued many new-comers thatPlaintiff’s executives believe d were infringing FHE’s name and trade dress. Defendants’ range of energy shots was one of Plaintiff’s targets.
B. Defendants’ Products Jeffrey Diehl has been in the dietary supplement game since the mid-1990s. In those early days, Diehl produced pills and powde rs going by the name of “Nitro2Go Herbal Energizer,” “Max Diet Formula,” “Sexual Enhan cement Formula,” and “Explosive Ginseng.” In 2005, Diehl founded N2G, and serv ed as its president. In 2007, Diehl came out with his first energy shot. Diehl wanted to sell an array of energy shots with different names, so he cr eated Alpha Performance Labs to market and distribute this universe of produc ts. In early 2008, Diehl began to market and sell “6 Hour Energy Shot,” “Nitro2Go Instant Energy,” and “Ext reme Monster Energy S hot.” As the picture below of 6 Hour Energy shows, the bottle bears so me resemblance to FHE’s bottle (on the left).

2 “Designations that have not yet acquired a trademark significance but are capable of doing so may be registered on the Supplemental Register,” which was created by 15 U.S.C. § 1091. 3 McCarthy on Trademarks and Unfair Competition § 19:32 (4th ed. 2013). “[A] Supplemen tal Registration confers no substantive trademark rights beyond those under common law [and] [s]ection 26 of the Lanham Act expressly excludes Supplemental Registrations from certain advantages gained by registration on the Principal Register.” Id. § 19:36 (footnote omitted).No. 12-1

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N2G ETCNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 7 Distributing. ETC also purchas ed products directly from De fendants before the permanent injunction issued. Just like N2G and Alpha Performance labs, these new companies were Diehl’s corporate creations. Diehl founded Nitro Rocks and owns 100% of the company. Nitro Rocks operates out of the same offices as N2G, in a building th at Diehl owns. ETC is a California corporation that Diehl founded along with Hratch Djanbati an in June 2010. Djanbatian became the sole owner of ETC on November 2, 2011, less than a week before trial started in this case. Diehl remains ETC’s manager, and has signing power on the company’s bank account. Like Nitro Rocks, ETC operates out of the same buildi ng where N2G used to do business. Diehl’s testimony during N2G’s bankruptcy proceeding revealed additional overlaps among these various companies—most egregiously, Diehl testif ied under oath that th ese various entities comingle assets essentially based on Diehl’s whims. With all this information in hand, Plaintiff moved the district court to hold Defendants and Diehl in contempt of the permanent inj unction. In response, Diehl and Djanbatian investigated how enjoined products could still be shipped to onlin e customers. Djanbatian found that the first order Plaintiff made had beenfilled by a new ETC employee who, unbeknownst to the corporate higher-ups, tossed in some enjoined products. Yet in April 2013—over six months after Plaintiff filed its motion for contempt—enj oined products were still being advertised on Groupon, a daily-deals website. An inspection of the ETC warehouse in April 2013 also showed that scores of bottles of enjoined products were still in stock—despite Diehl’s assurances that the products had been destroyed. On May 15, 2013, the district court held Defe ndants and Diehl in contempt for selling specifically enjoined products, as well as modified products that remained confusingly similar to FHE. The court found that Diehl’s conduct “evide nce[d] a refusal to fully comply with this Court’s permanent injunction order. Diehl’s shif ting of assets into a new corporation, and the minor changes made to his product labels, are the ac tions of an individual trying to hide from and avoid his obligations unde r this Court’s order.” Innovation Ventures, LLC v. N2G Distrib., Inc. , No. 08-CV-10983, 2013 WL 2145677, at *6 (E.D. Mi ch. May 15, 2013). The court ordered Diehl to fully comply with the permanent inj unction and destroy all enjoined and confusinglyNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 8 similar products, or risk fines of $1000 per day of noncompliance. As far as we know, this ultimatum has worked.
DISCUSSION
I. T RIAL AND PRE - TRIAL APPEAL Defendants’ first appeal stems from the distri ct court’s denial of their motion for a new trial and for relief from the judgment, which itsel f addressed: the sufficiency of the evidence supporting the jury’s verdict; an alleged inconsiste ncy in the jury’s verdict; several procedural and evidentiary rulings made by th e district court; and an issue concerning the propriety of the judgment entered. The district court rejected a ll of these arguments. We review the district court’s decisions on each of thes e issues for abuse of discretion. 3 “An abuse of discretion occurs when the district court relies on clearly erroneous findings of fact, improper ly applies the law, or uses an erroneous legal standard. We will find an abuse of discretion only when the Court has a definite and firm conviction that the trial court committed a clear error of judgment.” Mike’s Train House, Inc. v. Lionel, L.L.C. , 472 F.3d 398, 405 (6th Cir. 2006) (quotation marks and citation omitted). We address the numerous issues Defendants raise on appeal in turn.
A. Lanham Act Claims First and foremost, Defendants contend that th e district court shoul d have ordered a new trial on Plaintiff’s claims of trademark and trad e dress infringement, in violation of the Lanham Act. Defendants made their motion pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. This Rule allows district courts to grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). This Rule requires a new trial “onl y when a jury has reached a seriously erroneous result as evidenced by [among other things] the verdict being agains t the weight of the evidence.” Mike’s Train House , 472 F.3d at 405 (quotation marks and alteration omitted). “But granting a new trial on this ground is a rare oc currence . . . . Therefore, we will uphold the

3 See Balsley v. LFP, Inc. , 691 F.3d 747, 761 (6th Cir. 2012) (Fed. R. Civ. P. 59); Dortch v. Fowler , 588 F.3d 396, 400 (6th Cir. 2009) (discovery and evidentiary rulings); Radvansky v. City of Olmsted Falls , 496 F.3d 609, 618 (6th Cir. 2007) (Fed. R. Civ. P. 49); In re Walter , 282 F.3d 434, 440 (6th Cir. 2002) (Fed. R. Civ. P. 60).No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 9 verdict if it was one which the ju ry reasonably could have reached ; we cannot set it aside simply because we think another result is more justified.” 4 Armisted v. State Farm Mut. Auto. Ins. Co. , 675 F.3d 989, 995 (6th Cir. 2012).
1. Likelihood of confusion The Lanham Act creates a private cause of ac tion to protect trademarks and trade dress where there is a likelihood of confusion between the defendant ’s mark and the plaintiff’s protected mark. See Innovation Ventures, LLC v. N.V.E., Inc. , 694 F.3d 723, 728 (6th Cir. 2012); Gen. Motors Corp. v. Lanard Toys, Inc. , 468 F.3d 405, 414 (6th Cir. 2006). Defendants effectively concede that the Lanham Act protects FHE’s trademark and trade dress, and did so as of the moment 6 Hour Energy came on the market. Defendants’ sole argume nt on appeal is that there was insufficient evidence of a likelihood of confusion between their products and the FHE mark. Courts and juries consider the following fact ors in determining whether a plaintiff has proved that a likelihood of confusion exists: (1) the strength of the plaintiff’s mark, (2 ) the relatedness of the goods or services offered by the plaintiff and the defendant, (3 ) the similarity of the marks, (4) any evidence of actual confusion, (5) the mark eting channels used by the parties, (6) the probable degree of purchaser care and sophistication, (7) the defendant’s intent in selecting its mark, and (8) the likelihood of either party expanding its product line using the marks. Innovation Ventures , 694 F.3d at 731 (quoting Frisch’s Rests., Inc. v. Elby’s Big Boy of Steubenville, Inc. , 670 F.2d 642, 648 (6th Cir. 1982)); see also Groeneveld Transp. Efficiency, Inc. v. Lubecore Int’l, Inc. , 730 F.3d 494, 509 (6th Cir. 2013). “Not all of these factors will be relevant in every case”; indeed, the jury in th is case was not instructed on the eighth factor. Therma-Scan, Inc. v. Thermoscan, Inc. , 295 F.3d 623, 630 (6th Cir. 2002). In the process of applying these factors, “the ultimate question re mains whether relevant consumers are likely to believe that the products or services offered by the parties are affiliated in some way.” Id.

4 Defendants also claim that the district court should have granted a new trial pursuant to Fed. R. Civ. P. 60(b)(6). However, this Rule “applies only in exceptional or extraord inary circumstances.” Ford Motor Co. v. Mustangs Unlimited, Inc. , 487 F.3d 465, 468 (6th Cir. 2007) (quotation marks omitted). Defendants have not even attempted to show, nor do we perceive, that such circumstances exist in this case.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 10 (quotation marks and alteration omitt ed). In other words, the lik elihood-of-confusion factors can rarely be applied with mathematical precision—this is a ho listic endeavor.
2. Trademark claim The record shows that the jury heard ample evidence to support Plaintiff’s claim that a likelihood of confusion existed between Defe ndants’ products and the trademark “5-hour ENERGY.” First—and most importantly—the jury could use their eyes and see that Defendants’ products use similar marks. All six of the produc ts found to infringe the FHE trademark feature a number (6, 7, or 14) followed by “Hour” (either singular or plural) and “E nergy.” There are only three differences between Defendants’ pr oducts and the FHE trademark: the number preceding “Hour” and “Energy,” the fact that so me of Defendants’ products use the plural “Hours,” and the fact that some of Defendants’ products include a “+” or some other miniscule type between “Hour” and “Energy.” These discre te differences should not be considered in isolation—we “view marks in their entirety and focus on their overall impressions, not individual features.” Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr. , 109 F.3d 275, 283 (6th Cir. 1997). Second, the jury heard extensive testimony on the strength of the FHE mark. Deborah Jay, president of a survey research firm, presente d the results of a market survey she had done on the strength of the name “5 -hour ENERGY.” The survey was conducted over the phone with people Jay identified as prospective purchasers of energy shots. 300 people qualified to take the survey. Half of these people were a control gr oup, and were asked to give their responses to a fictitious brand name. The other half were as ked about FHE. Jay testified that the survey showed that FHE was a strong brand. Defendants attacked the survey as skewed because of the number of nonresponders (meaning people who don’ t want to take a telephone survey). Defendants also suggested that the survey may have only reflected the spike in FHE’s advertising that took place after Defendants had pulled their first products off the market. The jury heard these attacks, but could nonetheless have accepted the results of Jay’s survey. Plaintiff also presented the testimony of Ho ward Marylander, who had performed his own market survey study—this one online. Mary lander’s study showed that people generallyNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 11 perceived FHE as a brand name, not a generic na me. As with Jay’s study, Defendants attacked the strength of Marylander’s results. But as with Jay’s study, the jury was entitled to credit Marylander’s conclusion that FHE was a robust mark. Next, it can hardly be disputed that Plai ntiff’s and Defendants’ goods are related—both are two-ounce energy shots. The jury also h eard testimony that the parties used similar marketing channels to push their products. Wh ile Defendants did not advertise their products on television, both parties advertised at points of sale, very often at convenience stores. One exhibit even showed the parties’ display boxes side-by-side next to a convenience st ore cash register. In addition, the jury heard testimony that “especially in the convenience store, there’s a very large amount of what’s called impulse purchase. So people don’t go into the store planning to buy whatever the item is, but when they see it at the—when they see it fron t and center, which could be an end cap or, better yet, a cash register placement, they’ll tend to buy it.” (R. 317, Trial Tr. (Henderson), at 6859.) In other words, FHE cust omers were not tremendously careful when they entered the energy shot market and could easily be confused by proximate placement of the parties’ products. See Gray v. Meijer, Inc. , 295 F.3d 641, 649–50 (6th Cir. 2002).
Defendants focus on two of the likelihood-of- confusion factors that they claim should have tipped the verdict in their direction—actual confusion and Defendants’ intent. “Evidence of actual confusion is undoubted ly the best evidence of likelihood of confusion. [But] [d]ue to the difficulty of securing evidence of actual confusion, a lack of such evidence is rarely significant . . . .” Daddy’s Junky , 109 F.3d at 284 (quotation marks and citation omitted). Thus, Plaintiff did not need to show actual confusio n to prevail at trial. But in reality the jury did hear evidence of actual confusion. Lynn Peters marck, an advertising purchaserfor Plaintiff, recounted a conversation she had with a representative from the Discovery Channel ata television industry event. The representative told Petersmarck that he loved FHE, and even said he had one in his pocket. The bottle in his poc ket was actually a 6 Hour Energy—Defendants’ product. This Court has held that a single instance of actua l confusion can, in some cases, “increase the likelihood of confusion,” id. , even if stronger evidence of actua l confusion can come in the form of robust consumer surveys. See Groeneveld , 730 F.3d at 517.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 12
As for Defendants’ intent to confuse consum ers, Defendants claim that Diehl’s testimony absolves them on this factor. True, Diehl testified that he only wanted to compete with FHE fairly in the free market. But the jury had the lib erty to disregard Diehl’s self-serving testimony based on their evaluation of his credibility. Fu rthermore, Plaintiff elicited circumstantial evidence of intent. The 6 Hour Energy bottle contained a warning label identical to the one found on FHE. Diehl claimed that this was mere happenstance. But a jury could have inferred from the labels that Diehl was aware of FHE’s mark before he introduced 6 Hour Energy and all of his other products onto the market. 5 See Daddy’s Junky , 109 F.3d at 286 (“[T]he use of a contested mark with knowledge of the protected mark at issue can support a finding of intentional copying,” and thus suggest an intent to confuse.). Moreover, Plaintiff did not need to prove intent to prevail on its trademark claim: “Proving intent is not necessary to demonstrate likelihood of confusion.” AutoZone, Inc. v. Tandy Corp. , 373 F.3d 786, 799 (6th Cir. 2004). The likelihood of confusion analysis is not mechanical—the factors the jury considered were “simply a guide to help determine whether confusion is likely.” Homeowners Grp., Inc. v. Home Mktg. Specialists, Inc. , 931 F.2d 1100, 1107 (6th Cir. 1991). The jury heard ample evidence that an “ordinary consumer who would consider buying” FHE c ould likely be confused by the marks on Defendants’ products. Groeneveld , 730 F.3d at 509. The district court did not abuse its discretion in denying Defe ndants’ motion for a new trial.
3. Trade dress claim The Lanham Act applies to trade dress in additi on to trademarks. “Trade dress refers to the image and overall appearance of a product. It embodies that arrangement of identifying characteristics or decorations c onnected with a product, whether by packaging or otherwise, that makes the source of the product distinguishable from another and promotes its sale.” Id. at 503 (quotation marks omitted). A plaintiff must prove a likelihood of confusion between its protected trade dress and the defendant’s products using the same factors juries consider in a trademark claim. See Gen. Motors , 468 F.3d at 414.

5 All of these facts equally supported the jury’s findin g that Defendants’ infringem ent was intentional as to all but one of their products.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 13
Most of the factors discussed in the trademar k infringement analysis equally support the jury’s verdict of trade dress infringement: sp ecifically, the “the relatedness of the goods or services offered by the plaintiff and the defe ndant,” “evidence of actual confusion, [] the marketing channels used by the parties, [] the probable degree of purchaser care and sophistication, [and] the defendant’s intent in selecting its mark.” Innovation Ventures , 694 F.3d at 731. Plaintiff did not introduce evidence about the strength of FH E’s trade dress, but Plaintiff did introduce several television advertisements th at emphasized the look and size of the FHE bottle. These factors, plus a brief glan ce at the parties’ competing pr oducts, show that the district court did not err in denying Defendants’ moti on. But according to Defendants, their products simply contain a visually appealing combination of colors and shapes—any similarity to FHE is purely fortuitous. Defendants al so point out that their produc ts omit the color blue, which features prominently on the FHE bottle. But a produc t’s trade dress “is essentially its total image and overall appearance. It involve s the total image of a product a nd may include feat ures such as size, shape, color or color combinations, texture, graphics, or even partic ular sales techniques.” Two Pesos, Inc. v. Taco Cabana, Inc. , 505 U.S. 763, 764 n.1 (1992) (quotation marks and citation omitted). We do not approach trade dress claims by parsing minute differences between products—we focus on “the overall visual impression the two [products] create.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc. , 280 F.3d 619, 647 (6th Cir. 2002). The jury was able to use its eyes, look at the various pro ducts before it, and decide that a likelihood of confusion existed between Defendants’ products and FHE. It was not an abuse of discretion to deny Defendants’ motion for a new trial.
4. Fair use defense Finally, Defendants contend that even if th e names of their products were confusingly similar to Plaintiff’s, the fair use doctrine shou ld shield them from liability. “In evaluating a defendant’s fair use defense, a court must consider whether the defendant has used the mark: (1) in its descriptive sense; and (2) in good faith.” Hensley Mfg. v. ProPride, Inc. , 579 F.3d 603, 612 (6th Cir. 2009) (quotation marks and alteratio n omitted). The jury heard two facts that suggested Defendants did not use th eir marks in a descriptive sense— that is, to describe what theNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 14 product did. One, Defendants’ fi rst energy shot featured a TM sy mbol after the term “6 Hour Energy.” Diehl explained that he used this symbol because “I wanted the term ‘6 Hour Energy Shot’ to be mine, just like 5-hour ENERGY is [P laintiff’s].” (R. 319, Tria l Tr. (Diehl), at 7202.) But the jury was entitled to draw the inference that Defendants were not simply describing their product, they were attempting to lay claim to a ma rk. Two, Diehl testified that he had no basis for claiming that his products gave 7, 7+, or 14 hours’ worth of energy. A jury could infer that Defendants did not intend to describe what thei r products did when Defendants weren’t sure of that themselves. Furthermore, the evidence that supported th e finding of intentiona l infringement also supported a finding of bad faith. The jury h eard circumstantial evid ence suggesting that Defendants knew of Plaintiff’s prot ected mark and proceeded to copy it. A reasonable jury could have inferred from this fact that Defendants’ various marks were not used in good faith. B. Inconsistent Jury Verdict Next, Defendants argue that th e jury’s verdict was inconsis tent because the jury found that one of Defendants’ products, Nitro2Go Instan t Energy Extra Strength, did not violate FHE’s trademark, but other Instant Energy Products, with very similar names and bottles, did (all these products feature on Page ID 6610 of the attached verdict form). 6 Rule 49(b) of the Federal Rules of Civil Procedure allows a trial judge to “submit to the jury forms for a general verdict, together with written questions on one or more issues of f act that the jury must d ecide.” Fed. R. Civ. P. 49(b)(1). Rule 49(b) also establishes how cour ts should proceed when answers to the special questions of fact are inconsistent. If the interr ogatory answers are “consistent with each other but one or more is inconsistent with the general ve rdict,” the district court has the option of either approving a judgment, directing the jury to thi nk harder about its answers, or ordering a new trial. Fed. R. Civ. P. 49(b)(3). “When the answ ers are inconsistent with each other and one or more is also inconsistent with the general verd ict, judgment must not be entered; instead, the

6 Defendants also argue that some of the jury’s findings of intentional infringement are inconsistent because (in Defendants’ opinion) there was no evidence to support them. This argument fails because Rule 49 is not the appropriate vehicle for claims of insufficient evidence. See Jewell v. Holzer Hosp. Found., Inc. , 899 F.2d 1507, 1511 (6th Cir. 1990).No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 15 court must direct the jury to further consider its answers and verdict, or mu st order a new trial.” Fed. R. Civ. P. 49(b)(4).
We do not reach the merits of Defendants’ inconsistent verdict argument, however, because Defendants waived their Rule 49(b) object ion. Our settled interp retation of this Rule required Defendants to raise thei r inconsistency objection before the jury was discharged. See Fencorp, Co. v. Ohio Ky. Oil Corp. , 675 F.3d 933, 944 (6th Cir. 2012). “The purpose of the rule is to allow the original jury to eliminate any inconsistenc ies without the need to present the evidence to a new jury. This prevents a dissa tisfied party from misusi ng procedural rules and obtaining a new trial for an asserted inconsistent verdict.” Radvansky v. City of Olmsted Falls , 496 F.3d 609, 618 (6th Cir. 2007) (quotation ma rks omitted). Defendants here had the opportunity to object before the ju ry was discharged. Despite th is, they waited until their posttrial motions to raise th is issue. Parties canno t use Rule 49(b) as a ge t-out-of-jail-free card—one last chance to get a new trial based on issues that the jury could easily have resolved. Defendants have waived their objection to an y purported inconsistencie s between the general verdict and the special interrogatories. C. Discovery Dispute Defendants next argue that they were deni ed access to necessary discovery—namely, the secret formula of FHE. Not only do we review the district court’ s discovery rulings for abuse of discretion, “[r]eversal is proper only if we ar e firmly convinced of a mistake that affects substantial rights and amounts to more than harmless error.” Himes v. United States , 645 F.3d 771, 782 (6th Cir. 2011) (quotatio n marks omitted). Defendants do not satisfy this exacting standard. During discovery, Plaintiffs requested the formula for Defendants’ products. These formulas were directly relevant to one of Plaint iff’s claims—false advertis ing. To prevail on this claim, Plaintiff needed to prove, among other th ings, that Defendants “made false or misleading statements of fact concerni ng [their own] product[s].” Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc. , 270 F.3d 298, 323 (6th Cir. 2001) . If Defendants’ bottles said the products produced seven or more hours of energy (however that is defined), but the formulas were incapable of having this effect on consumers, this disc repancy would go a long way towards provingNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 16
Plaintiff’s case. Defendants ob jected to this request, but as a fallback position, asked for reciprocal production of Plainti ff’s formula. The court granted Plaintiff’s request for the formulas, but denied Defe ndants’ copycat demand. Defendants’ formulas were directly relevant to Plaintiff’s claim of false advertising, and therefore clearly discoverable under Rule 26 of the Federal Rules of Civil Procedure. But Defendants had no counterclaim or defense that would make Plainti ff’s formula directly relevant to their case. Defendants instead rely on a bank-s hot theory of relevance. Plaintiff introduced a study at trial indicat ing that FHE exhibited indicators of “energy” at the six-hour mark in some people. Defendants argue that if Plaintiff’s formula had been produced, Defendants could have compared their own formulas with Plaintiff’s, and then extrapol ated whether their products could provide energy after seven or more hours. One of Plaintiff’s expe rt witnesses testified why this simple comparison would be of little practical use: “Just because you have a blend and it has certain ingredients, unless you know the qualit y, the amounts, the ingredients, you wouldn’t be able to make a claim certainly that it worked better unless you did a comparative effect of the study to actually do a study to compare that.” (R . 317, Trial Tr. (Kreider), at 6965–66.) In other words, even if Defendants had been given access to Plaintiff’s formula, that information would have been of little use without a comparative study. But more to the point, Defendants had a far easier method to evaluate their own products—they could perform an inde pendent test of their effectiven ess. Plaintiff’s formula is a highly proprietary, competitive secret that would ha ve been only marginally relevant, at best, in this trial. It is “highly unlikely” that Defendants would have achieved a better result at trial if they had access to the FHE formula. Varga v. Rockwell Int’l Corp. , 242 F.3d 693, 700 (6th Cir. 2001). The district court theref ore did not abuse its discretion in denying Defendants’ copycat request for production. D. Evidentiary Rulings
Defendants next assert that the dist rict court erred in three sets of in limine evidentiary rulings concerning other litigation involving the parties. Both Plai ntiff and Defendants wanted to use evidence of these other cases to assist their presentation to the jury. We cannot find fault in the district court’s handling of a ny of these eviden tiary disputes.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 17
1. The Herbal Nitro case In 2002, Defendant N2G sued the sellers of a product called “Herbal Nitro” for trade dress infringement. Herbal Nitro and N2G both made dietary supplements in capsules, and N2G—or rather, Diehl—believed that the packagi ng for Herbal Nitro was confusingly similar to N2G’s. However, the court hearing the case conc luded that the two pro ducts’ packaging was too dissimilar to maintain a trade dress claim. Defendants sought to introduce ev idence of the Herbal Nitro cas e at trial to show that Diehl did not intend to infringe FHE’s trade dress. Defendants claimed that Diehl’s experience with the Herbal Nitro case taught him that so long as there were slight differences between packages, he could not be held liable for viola ting the Lanham Act. Th e district court allowed Defendants to present precisely this evidence at trial. But Defendants claim this was not enough—they wanted to introduce the court’s written opinion in the Herbal Nitro case. That opinion, authored by a different judge in a different circuit, might well have confused the issues at trial or misled the jury. See Fed. R. Evid. 403. Defendants got to tell the jury the substance of the Herbal Nitro opinion. The di strict court did not e rr by regulating the form this evidence took.
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e ment f this i d not n hisNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 19 personal acquaintance with the pr esident of Hansen. Defense counsel stopped that line of questioning there to ensure that the jury did not hear about the lawsuit sparked by Extreme Monster. But Plaintiff’s attorney followed up on this line of questioning in cross-examination, asking Diehl if he thought M onster had inspired the Extreme Monster Energy Shot. Diehl testified that the two pr oducts were “totally di fferent,” despite their si milar appearance. (R. 319, Trial Tr. (Diehl), at 7209.) Plai ntiff’s attorney again followed up: [Plaintiff’s Counsel]: And Monste r complained to you, didn’t they? [Diehl]: About the coloring of the product? No. In fact, when we discussed the settlement issue , they offered me $50,000 not to us e these colors because they were my colors. My product was out before theirs was. [Plaintiff’s Counsel]: Your Honor, I move to strike. That’s hearsay. The Court: Well – [Plaintiff’s Counsel]: But let me as k you a question. So how did you end up resolving it then? [Diehl]: I had made a mistake on that , which I owned up to. Apparently, and again, lack of knowledge, I didn’t know, b ecause I asked [Hansen] whether or not they were even going to make a shot, a nd I made a shot that used the term “Monster” in a totally different context, and what I didn’t understand is that even though energy drinks have a different ca tegory in the registration, they had registered it in supplements, and becau se I used the term “Extreme Monster Energy Shot,” and the key words there being “Monster” and “Energy,” that’s what they had copywritten and even though they didn’t have a product on the market like that, apparently the mark carri ed over, and as soon as I knew that, I pulled it immediately. [Plaintiff’s Counsel]: A nd you paid them, didn’t you? [Diehl]: Yes, I did. ( Id. at 7209–10 (emphasis added).) Defendants never objected to Plaintiff’s ques tions concerning Monster. We therefore review this issue for plain error. See Bowman v. Corr. Corp. of Am. , 350 F.3d 537, 548 (6th Cir. 2003). Under this standard, we will only reverse if the district court made an error that was plain and affected Defendants’ substantial rights. See United States v. Demjanjuk , 367 F.3d 623, 629 (6th Cir. 2004). Assuming these conditions are met, “we can addre ss the error if we find, in our discretion, that the error seriously affects the fairness, integr ity, or public reputation of judicialNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 20 proceedings.” Griffin v. Finkbeiner , 689 F.3d 584, 598 (6th Cir. 2012) (quotation marks omitted). Even assuming that the jury should not have heard Diehl’s testimony about his settlement with Hansen, Defendants cannot establish the remain ing elements of plain error. Diehl himself was the first one to gratuitously raise the question of settlement. If the jury credited his testimony, they would have come away with a be tter impression of him than had the evidence been excluded. In Diehl’s version of events , the makers of Monster first offered to pay him $50,000 to take his product off the market. The jury also heard Diehl say that when he found out that his products might infringe on the Monster ma rk, he pulled Extreme Monster off the shelves. These facts suggest that Diehl was solicitous towards others’ in tellectual property—the very opposite of a serial infringer. Diehl’s self-serving testimony di d not infringe on Defendants’ substantial rights, let alone seriously affect the integr ity of the trial.
3. Other litigation involving Plaintiff Finally, Defendants assert that they should have been permitted to introduce evidence about Plaintiff’s business strategy of protecting its trademark and trade dress through litigation. The flaw in Defendants’ argument is that they did introduce a great deal of evidence concerning Plaintiff’s litigiousness. Defendant s concede this fact, but aver th at they were prejudiced by not being allowed to tell the jury the outcome of Plai ntiff’s other cases. The di strict court did not err in concluding that the probative value of this evidence was substantially outweighed by its potentially deleterious impact on th e trial. Plaintiff’s motive in bringing this case was all but irrelevant—what mattered what whether Defendants ’ products were confusingly similar to FHE.
E. Plaintiff’s Counsel ’s Conduct at Trial Defendants’ next claim of error focuses on que stions asked by Plainti ff’s counsel at trial that, Defendants assert, willfully violated the district court’s in limine orders. To prevail on this claim, Defendants “must make a concrete showi ng that the conduct consistently permeated the trial such that [Defendants were] un fairly prejudiced by the misconduct.” Tompkins v. Crown Corr, Inc. , 726 F.3d 830, 835 (6th Cir. 2013) (quotatio n marks omitted). “In making this assessment, we look at the totality of the circ umstances, including the nature of the comments,No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 21 their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, th e strength of the case (e.g., whether it is a close case), and the verdict itself.” Mich. First Credit Union v. Cumis Ins. Soc’y, Inc. , 641 F.3d 240, 249 (6th Cir. 2011). “If we determine that coun sel made improper comments, we may set aside the verdict only if there is a reasonable probability that the verdict of the jury has been influenced by such conduct.” Balsley v. LFP, Inc. , 691 F.3d 747, 761 (quotation marks omitted). Not only do we review the district court for abuse of di scretion, in this par ticular context, we give a “high level of deference . . . to the tria l court in determining whether improper comments prejudiced the jury.” Id. at 762. Defendants point to two lines of questioning that they say co ntravened the district court’s pre-trial evidentiary rulings—the questions to Di ehl about the settlement of the Monster Energy case which are detailed above, supra at 18–20, and questions about the substance of the Herbal Nitro case. Defendants’ latter complaint is somewhat odd since they were the ones who wanted to introduce evidence about the Herbal Nitro case to show Diehl’s lack of intent. Defendants in fact did just that—asking Diehl on direct about the conflict between him and the maker of Herbal Nitro, the outcome of that conflict, and what Di ehl learned from his e xperience. Plaintiff’s counsel returned to this subjec t on cross-examination. Like Defe nse counsel, Plaintiff’s attorney only referred to the “controversy” regarding Herb al Nitro. (R. 319, Trial Tr. (Diehl), at 7183.) But Diehl himself responded to one of these ques tions by mentioning that he “went to court.” ( Id. ) Plaintiff’s counsel followed Diehl’s lead, asking him whether the case had ended favorably for Diehl. And when Plaintiff’s attorney thought that Diehl was lying on the stand, he tried to introduce the court’s written opi nion for impeachment purposes. He never got the chance. Defendants’ counsel objected, and th e court sustained the objection. Plaintiff’s questions about M onster Energy and Herbal Nitro fall short of the type of conduct that would warrant reversin g the district court. These questions happened in the space of a few minutes during a multi-day trial. A jury could have interpreted the questions and Diehl’s responses favorably for Defendants. A nd the jury was inundated with other evidence supporting Plaintiff’s claims—above all, the evidence of Plaintiff’s and Defendants’ productsNo. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 22 seen side-by-side. The district court did not abuse its discreti on in denying Defendants’ motion for a new trial on these grounds. See Tompkins , 726 F.3d at 836. F. Entry of Judgment Finally, Defendants argue that that the district court erred when it denied their Rule 60 motion to set aside the judgment entered following the jury trial and replace it with two separate judgments memorializing the portions of the jury verdict that favored Defendants. This claim borders on the absurd. The judgment entered after trial simply states that the jury returned a verdict and that Defendants must pay Plaintiff $1.75 million. 7 The judgment makes no mention of the claims presented to the jury, much less how the jury rule d on each. Defendants obje cted to the form of this judgment, and asked the court to strike it from the record and replace it with two new judgments—the first stating that the jury had not found that one of Defendants’ products violated the FHE trademark, and the second stating that th e jury had not found that four of Defendants’ products falsely advertised themselves. Defendant s claim that Rule 58(a) supports their position, since that Rule requires that “[e]very judgmen t and amended judgment must be set out in a separate document.” According to Defenda nts’ opaque reasoning, Ru le 58(a) requires the district court to memorialize all of the jury’s factual findings in separa te documents. Defendants entirely misapprehend the purpose of the separate-document rule. This rule was “intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final ju dgment of the district court only to have the appellate court announce la ter that an earlier document or entry had been th e judgment and dismiss the appeal as untimely.” Bankers Trust Co. v. Mallis , 435 U.S. 381, 385 (1978) (per curiam). The separate-document rule was thus designed to ensure finality, clarity, and efficiency. Defendants’ request would have had the opposite eff ect. By fracturing a single judgment into multiple ones, Defendants would ha ve sowed confusion using a Rule that was designed to eliminate it. The di strict court did not abuse its discretion in denying this motion.

7 Defendants claim that the district c ourt never approved the judgment. Th is is false. The court approved the first judgment entered after trial. A corrected judgment was later issued, which was s ubstantively identical to the judgment the court explicitly approved.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 23
II. C ONTEMPT APPEAL After the jury returned its verdict, the district court permanently enjoined Defendants and their associates from selling the products fou nd to infringe on the FHE trademark and trade dress. The court also enjoined Defendants from selling products that were confusingly similar to FHE. After Plaintiff discovered that Defendants were selling sp ecifically enjoined products and modified versions of the enjo ined products, the district cour t held Defendants and Diehl in contempt. Defendants have appealed the district court’s contempt ruling that relates to the modified products. 8 The district court did not hold that th e modified products themselves would violate the Lanham Act. Rather, the court used the so-called “Safe Distance Rule” to find that the modified products were confusingly similar to FHE’s trademark and trade dress. We review the district court’s factual findings for clear erro r and its contempt ruling for abuse of discretion. See Rolex Watch U.S.A., Inc. v. Crowley , 74 F.3d 716, 720 (6th Cir. 1996). This means that we will not reverse the district cour t “simply because we would have decided the case differently. Rather, a reviewing court must ask whether, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie , 532 U.S. 234, 242 (2001) (quotation marks and citation omitted). Employing this standard of review, we see no reason to reverse the district court.
A. The Safe Distance Rule A court’s ability to issue injunctions, and then enforce those injunctions with a finding of contempt, springs from the court’s inherent equitable powers. See Porter v. Warner Holding Co. , 328 U.S. 395, 398 (1946); United States v. Hudson , 11 U.S. (7 Cranch) 32, 34 (1812). Equity allows courts, faced with recalcitrant parties who repeatedly viol ate the law, to craft permanent injunctions which “proscribe activiti es that, standing alon e, would have been unassailable.” E.E.O.C. v. Wilson Metal Casket Co. , 24 F.3d 836, 842 (6th Cir. 1994) (quotation marks omitted). This equitable principle goes by a specialized name in the context of permanent injunctions to protect intellectual property—the Sa fe Distance Rule. Like the general principle,

8 Defendants also appealed the district court’s holding them in contempt for selling the specifically enjoined products. But at oral argument, Defendants abandoned this ground for appeal as moot. In any event, the district court did not commit any reversible error by holding Defendants and Diehl in contempt on these grounds.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 24 the Safe Distance Rule “prevent[s] known infri ngers from using trademarks whose use by noninfringers would not necessarily be actionable.” Taubman Co. v. Webfeats , 319 F.3d 770, 778– 79 (6th Cir. 2003) (citing Broderick & Bascom Rope Co. v. Manoff , 41 F.2d 353 (6th Cir. 1930)). The Safe Distance Rule gives courts a particul arly useful tool in crafting and enforcing permanent injunctions. Once a party infringes on another’s trademark or trade dress, the confusion sowed “is not magically remedied” by de minimis fixes. Id. at 779. “Instead, the confusion lingers, creating the need for the infr inger not only to secure a new non-infringing name (or other infringing characteristic) for hi s product, but one so far removed from any characteristic of the plaintiff so as to put th e public on notice that the two are not related.” Id. In contempt proceedings, the Safe Distance Rule “relie v[es] the reviewing court of the need to retry the entire range of issues that may be relevant in an infringement action for each small variation the defendant makes to the enjoined mark.” PRL USA Holdings, Inc. v. U.S. Polo Ass’n, Inc. , 520 F.3d 109, 118 (2d Cir. 2008). If the law were otherwise, an enjoined party “could simply make a tiny change and start a new trademark contest all over again in the context of the contempt hearing as to use of the ‘new’ form at.” 5 McCarthy on Trademarks and Unfair Competition § 30:21 (4th ed. 2013). The Safe Distance Rule is thus a well accepted part of the court’s remedial toolkit. See PRL , 520 F.3d at 117–18 (collecting cases). But Defe ndants contend that this Circuit does not look favorably on the Safe Distance Rule in cases involving the Lanham Act. Defendants discern this disfavor from a sentence of dictum in Taubman , where we observed that the Safe Distance Rule pre-dated the La nham Act by at least two decades, and commented that we “need not find whether the Safe Distance Rule has su rvived the enactment of” that statute. Taubman , 319 F.3d at 779. The parties have not directed us to anything in the Lanham Act that cabins the traditional power of the courts to tailor permanen t injunctions as needed to accomplish equity. Cf. Califano v. Yamasaki , 442 U.S. 682, 705 (1979) (“Absent the clearest command to the contrary from Congress, federal courts retain th eir equitable power to is sue injunctions in suits over which they have jurisdiction.”). No other circuit has questioned the continuing viability of the Safe Distance Rule; courts continue to em ploy this tool; and commentators continue to recommend it.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 25
Our dictum in Taubman is best read against the part icular facts of that case. Taubman was an appeal from a preliminary injunction, see Taubman , 319 F.3d at 779–80, not, as here, an appeal by a party held in contempt after vi olating a permanent injunction. Moreover, Taubman was not a commercial dispute at all. That case addressed whether a business could use the Lanham Act to shut down public debate about its commercial activities. See id. at 778–79. The Safe Distance Rule had no place in Taubman . But it is particularly apt in this case—where a serial infringer has tinkered with products to skirt a permanent injunction for commercial gain. At oral argument, Defendants raised a new objection to the us e of the Safe Distance Rule in this case. Defendants argue that even assuming that the Rule applies to trade mark claims, the Rule should not apply to trade dress claims, which are too subjec tive, Defendants contend, for the Safe Distance Rule to be applied fairly. We have found no authority suggesting that such a bifurcation of the Safe Distance Rule is appropri ate. To the contrary, many courts have done what the district court did here—apply the Safe Distance Rule to ensure that a serial infringer respects protected trade dress. See Badger Meter, Inc. v. Grinnell Corp. , 13 F.3d 1145, 1155–56 (7th Cir. 1994); Oral-B Labs., Inc. v. Mi-Lor Corp. , 810 F.2d 20, 24 (2d Cir. 1987), superseded by rule on other grounds

. The Safe Distance Rule is nothing more than a specialized application of the courts’ traditional equitable power to craft permanent injunctions tailored to the needs of each case, and then enforce them with the sanction of contempt . The district court’s permanent injunction in this case barred Defendants, their agents, and th eir confederates from marketing products that use marks “confusingly similar” to the protected trademark and trade dr ess of FHE. (R. 362, Permanent Injunction, at 8963.) Once Plaintiff moved for contempt, the district court did not err by refusing to go through a full likelihood-of-conf usion analysis with Defendants’ modified products. The district court was within its ri ghts to simply determine whether the modified products were confusingly similar to FHE. 9 See Wolfard Glassblowing Co. v. Vanbragt , 118 F.3d 1320, 1322–23 (9th Cir. 1997).

9 We do not address whether it would have been an abuse of discretion if the district court had required Plaintiff to engage in a full likelihood-of-confusion analysis. Compare Wella Corp. v. Wella Graphics, Inc. , 37 F.3d 46, 48 (2d Cir. 1994) (“The district court therefore erred by employing the [likelihood-of-confusion] analysis . . . to evaluate the legality of a minor alteration of a mark already found to be infringing.”), with Badger , 13 F.3d at 1156No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 26 B. The District Court’s Contempt Ruling Applying the Safe Distance Rule , the district cour t found that the modified products were confusingly similar to FHE’s protected mark. This was not an abuse of discretion. The district court found that “Defendants’ new labels on their Nitro2Go Pure Energy product ha[d] a redyellow-black color scheme that closely mimics Plaintiff’s label: a black bottom with a yellow sunrise fading to red.” Innovation Ventures, LL C v. N2G Distrib., Inc. , No. 08-CV-10983, 2013 WL 2145677, at *5 (E.D. Mich. May 15, 2013). A glance at the pictures of Defendants’ modified products shows that th e district court’s fa ctual findings are not clearly erroneous. Defendants argue that they were attempting to make their modified products look more like Nitro2Go Instant Energy Extra Strength, which the jury found not to infringe on FHE’s trade mark . But the jury made no such finding about that product’s similarity to FHE’s trade dress , meaning that this Nitro2Go bottle was nota failsafe guide for designing modified products. The district court sat through a lengthy trial where it heard ev idence supporting many of the likelihood-of-confusi on factors. It could visually comp are the modified products with the FHE bottle. The district court did not abuse its discretion by holding that the modified products were confusingly similar to FHE. In a final attempt to upset the district c ourt’s ruling, Defendants urge that the court effectively conducted a summary trial against three new defendants—Diehl, ETC, and Nitro Rocks. Defendants are wrong. Th ere was no summary trial because the district court did not find that marketing the modified products violated the Lanham Ac t. The issue was not whether anyone infringed Plaintiff’s protected marks, but whether Defendants and their agents had violated the permanent injunction. See Wella Corp. v. Wella Graphics, Inc. , 37 F.3d 46, 48 (2d Cir. 1994). The district court did not even ho ld ETC or NitroRocks in contempt, although it probably could have given Diehl’s testimony about the overlaps amo ng Defendants and these entities—including commingling of assets. See Fed. R. Civ. P. 65(d)(2)(C). And although the district court declined to enjoin Diehl in his personal capacity, Diehl is still subject to the injunction to the exte nt he acts as an agent of Defendants. See Fed. R. Civ. P. 65(d)(2)(B); see

(“[W]hile the district court would have been within its discretion to require Hersey to choose a trade dress that avoided all possibility of confusion, it was not required as a matter of law to do so.”).No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 27
also Elec. Workers Pension Trust Fund of Loca l Union # 58 v. Gary’s Elec. Serv. Co. , 340 F.3d 373, 386 (6th Cir. 2003). Ther e was no summary trial.
CONCLUSION For these reasons, we AFFIRM the district court in full.No. 12-1635 Innovation Ventures v. N2G Distrib., et al. Page 28



# Appendix2:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 1 of 7 Pg ID 66092:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 2 of 7 Pg ID 66102:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 3 of 7 Pg ID 66112:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 4 of 7 Pg ID 66122:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 5 of 7 Pg ID 66132:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 6 of 7 Pg ID 66142:08-cv-10983-PDB-MJH Doc # 310 Filed 11/18/11 Pg 7 of 7 Pg ID 6615