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Plaintiff Gets to Present Damages Calculation Despite Missing Deadline / Unfair Competition Claims Dismissed
Nanochem Solutions v. Global Green Products, Case No. 10-5686, Slip Op. (N.D. Ill. Sept. 10, 2013)(Hart)
At issue in this opinion are (1) a motion in limine, and (2) a motion for summary judgment, both filed by defendant Global Green Products.
In their motion-in-limine, Global Green sought to block Nanochem from introducing any damages calculation at trial because it had originally claimed damages based on a reasonable royalty, but shifted to lost profits at the very end of the case. In fact, it had never unveiled its damages calculation (as required by Rule 26(a)(1)) until it responded to Global Green’s motion-in-limine. Nonetheless, as the date for the final pre-trial order has not yet been set, the Court determined that Global Green was not prejudiced, and therefore, Nanochem will be allowed to present its damages calculation.
Also in their motion-in-limine, Global Green claimed that the damages calculation presented by Nanochem is not a legally proper way to calculate lost profits. The Court essentially ruled that the proper venue to raise this issue is a rule 50 motion for JMOL. In addition, Nanochem will be able to revise its damages calculation (if needed) in the final pretrial order, in jury instructions, and in trial briefs.
Global Green had better luck with its motion for summary judgment. In particular, Global Green challenged count VI (unfair competition based on the Lanham Act) and VII (unfair competition based on Illinois law), and was successful in having both dismissed. The mark asserted by Nanochem (A-5D) was determined to be descriptive; i.e., not distinctive, and without secondary meaning (otherwise referred to as acquired distinctiveness). Under longstanding precedent – no distinctive mark (acquired or inherent), no cause of action for unfair competition. Accordingly, the Court granted summary judgment on both claims.