UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

INNOVATION VENTURES, LLC, 

 Plaintiff, 

 Case No. 09-13783 

 Hon. Lawrence P. Zatkoff 

v. 

BHELLIOM ENTERPRISES CORP., 

 Defendant. 

 /

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse, 

in the City of Port Huron, State of Michigan, on October 5, 2012 

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF 

UNITED STATES DISTRICT JUDGE 

I. INTRODUCTION 

This matter is before the Court on Plaintiff’s Motion to Amend/Correct Judgment [dkt 

88], brought under Fed. R. Civ. P. 59(e). Defendant did not respond to Plaintiff’s Motion, but 

filed a separate Motion to Strike Plaintiff’s Motion [dkt 89]. Defendant’s Motion has been fully 

briefed. The Court finds that the facts and legal arguments are adequately presented in the 

parties’ papers such that the decision process would not be significantly aided by oral argument. 

Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motions be 

resolved on the briefs submitted. For the reasons set forth below, Plaintiff’s Motion to 

Amend/Correct Judgment is DENIED and Defendant’s Motion to Strike Plaintiff’s is DENIED 

AS MOOT. 

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II. BACKGROUND 

Plaintiff challenges the Court’s July 26, 2011, order, alleging that the Court applied the 

wrong standard in finding Defendant was not liable for false advertising under the Lanham Act. 

To establish a claim for false advertising under the Lanham Act, a plaintiff must prove 

that: 

(1) the defendant has made false or misleading statements of fact 

concerning his product or another’s; (2) the statement actually or 

tends to deceive a substantial portion of the intended audience; (3) 

the statement is material in that it will likely influence the deceived 

consumer’s purchasing decisions; (4) the advertisements were 

introduced into interstate commerce; and (5) there is some causal 

link between the challenged statements and harm to the plaintiff. 

Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 323 (6th Cir. 2001) (citing 

Am. Council of Certified Podiatric Physicians and Surgeons v. Am. Bd. of Podiatric Surgery, 

Inc., 185 F.3d 606, 613 (6th Cir. 1999)). Focusing on the “causal link” element, the Court, in its 

July 26, 2011, order, found that: 

Plaintiff has failed to demonstrate a genuine dispute regarding the 

causal link between the alleged false advertising and harm to 

Plaintiff. See IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 

376 (5th Cir. 2002) (affirming grant of summary judgment on false 

advertising claim where, even if the challenged statement were 

literally false, the plaintiff presented no evidence indicating that 

consumers would have bought its product instead of the 

defendant’s product in the absence of the defendant’s allegedly 

false statement). 

As Plaintiff asserts: 

[C]ases involving injunctive relief and those 

seeking monetary damages under the Lanham Act 

have different standards of proof. A plaintiff suing 

to enjoin conduct that violates the Lanham Act need 

not prove specific damage. In contrast, courts 

require a heightened level of proof of injury in order 

to recover money damages. Porous Media Corp. v. 

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Pall Corp., 110 F.3d 1329, 1335 (8th Cir.1997) 

(citation omitted). 

Here, Plaintiff presents no proof, through loss of sales or 

otherwise, that it incurred specific damages due to any of the 

allegedly false advertising. At most, Plaintiff’s expert makes the 

unsupported assertions that ‘[s]ome of [Defendant’s] sales no 

doubt were drawn from consumers who might have purchased 5 

Hour Energy’ and that ‘it is completely logical for a consumer to 

be attracted to [Defendant]’s product.’ 

Dkt. 86 at 11–12 (emphasis added). 

Plaintiff now claims that the Court erred by: 

requir[ing] [Plaintiff] to come forward with evidence of a specific 

loss of sales resulting from [Defendant’s] false advertising to show 

a ‘causal connection’ between the advertising and harm to 

[Plaintiff]. Such evidence, however, is not a prerequisite to a 

finding of liability for false advertising or the issuance of an 

injunction under the Lanham Act. To show a ‘causal connection,’ 

the Lanham Act requires [Plaintiff] to show only that it ‘believes 

that . . . [it] is likely to be damaged by [the false advertising]. 

Dkt. 88 at 12 (emphasis added). 

III. LEGAL STANDARD 

A court may grant relief pursuant to Rule 59(e) only where there is: “(1) a clear error of 

law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to 

prevent manifest injustice.” Henderson v. Walled Lake Consol., 469 F.3d 479, 496 (6th Cir. 

2006) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). 

IV. ANALYSIS 

The Court finds that a simple reading of its July 26, 2011, order, shows that Plaintiff was 

not required to show a “specific loss of sales” to establish a causal connection between the 

alleged false advertising and Plaintiff’s harm. Rather, the Court’s order stated, in no uncertain 

terms, that Plaintiff failed to provide any proof—“through loss of sales or otherwise”—that it 

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incurred injury as a result of the allegedly false advertising. The Court thus properly found that 

Plaintiff “failed to demonstrate a genuine dispute regarding the causal link between the alleged 

false advertising and harm.” 

V. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend/Correct 

Judgment [dkt 88] is DENIED. 

IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiff’s Motion to 

Alter or Amend Judgment under Fed. R. Civ. P. 59(e) [dkt 89] is DENIED as moot. 

 IT IS SO ORDERED. 

 s/Lawrence P. Zatkoff 

 Date: October 5, 2012 LAWRENCE P. ZATKOFF 

 UNITED STATES DISTRICT JUDGE

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