Money damages require harm, but not consumer perception evidence

Thermal Design, Inc. v. Guardian Bldg. Products, Inc., 2012 WL 5835797 (E.D. Wis.)

Previous decision discussed here, now abrogated in part as follows.  Thermal Design moved for reconsideration of the court’s ruling that it couldn’t recover monetary damages.  In a literal falsity case, a presumption of consumer deception applies, but only for injunctive relief.  To recover monetary damages, a plaintiff must show more than a mere presumption.  Evidence of actual consumer confusion is not required, but evidence of consumer reliance is required.  These are related—confusion can be used to show reliance.  But various forms of evidence can suffice: evidence of actual sales diversion; survey evidence; testimony from a dealer, distributor, or customer; evidence of eroding revenues and/or a corresponding increase in competitors’ revenues; or even common sense (with respect to false statements that would generally be expected to create a substantial competitive advantage).

With all that, Thermal Design’s motion was well-taken because it did submit an expert opinion on damages.  Guardian argued that the opinion didn’t show consumer confusion, but confusion could be presumed in a literal falsity case.  Thus, Thermal Design created a factual issue for trial.