*1 omitting the there—-justified legal conclusions while rest.8 manufactured being F,2d Moore, pointed United States v. “particu- to a inference former Cf. Gates, 1991) (district court failed searched. See place” lar any explanation sup- for denial of 230,103 provide at S.Ct. 2317. U.S. motion). pression Ill opin- memorandum The district court’s the district Lastly, Thomas contends facts; sufficiently ion there addressed by failing its discretion court abused no abuse discretion. memorandum make state “essential Specifically suppress. essential he See opinion denying his motion contends factual [factual] Fed. R. Crim. the court findings findings” with P. failed 12(d). re- its AFFIRM court. For the reasons set forth * * ^[*] of the district above, we of his consent spect to his to the search

car, complaints by Officer received

Corbett, subpoena Inter-County 12(d), when evidence. Under Rule deciding are issues involved

“factual motion,” a

[pre-trial] court “must district on findings its essential the record.”

state mandatory is a district rule

This it fails to com- its discretion when

abuses Moore, v.

ply. States United (6th Cir. INC. BAR’S PRODUCTS for his support argument, Thomas As Plaintiff-Appellant, v. 625 F.3d 583 Wright, cites United States 2010). Wright, In Ninth Cir- suppression cuit reversed and remanded INTERNATIONAL BARS PRODUCTS denial with instructions INC.; Bar’s Product International findings. essential Id. court make factual Ltd.; Bars, Incorporated, California Wright, inapposite: though, 604. Corporation, Defendants-Appellees. con- when involved two-sentence denial No. 14-1611 testimony tradictory between a defendant important police left facts unresolved. of Appeals, United Court States contrast, 601-04. In Id. at district Sixth Circuit. find- pages set forth two of factual 02, 2016 Filed November denying ings in its order memorandum Op., motion to suppress. Mem. Thomas’s thoroughly incorpo-

R. at 2-3. It also into legal analysis. these facts A

rated court does not abuse its discretion

in choosing which to its facts essential Prieto-Villa, Further,

8. this court been de- has not have court. United States Cf. 1990) ("Essential prived findings” review the find- of "essential denial, necessary ings we have to us the same record are facilitate available review.”). appellate material facts were before the district *3 selling soured when started products abroad under different brand name, responded by promoting at a Las Vegas trade show. BPI, alleging sued trademark in- fringement competition; and unfair with breach-of-contract countered and un- fair-competition claims. The district court dismissed of Bars’s claims but allowed *4 jury to consider BPI’s counterclaims. The $1,560,195 awarded BPI for breach $974,849 contract for and unfair competi- appeal, tion. On argues Bars that the dis- trict court in denying erred its motion for judgment as a matter both by refusing counterclaims and grant Bars leave amend its trademark part claim. We AFFIRM and RE- part. VERSE in I.

In Fred developed Barton a radia- tor stop-leak product and later established Bars to protected market it. Barton his Susser, Carlson, C. Gaskey Steven & trademarks, invention through patents and Olds, Birmingham, MI, Michael Francis holding some in capacity his individual and Smith, Office, DC, Washington, Law for through others or Barton’s wholly- Bars Plaintiff-Appellant owned company, Huki Lau. Over the next decades, two Barton built an international Mitchell, Christopher A. Dickinson selling distribution chain by raw materials Arbor, MI, Ann Wright, for Defendants- to companies produce licensed and sell Appellees Bars International Products. signature of “Bar’s brand Leaks” Bars, Incorporated and products. Jerry Kaplan, Alan Kaplan, Kenegos & began BPI li- foreign one Kadin, Hills, CA, Beverly for Defendant- Barton, Lau, censees. In Huki and Appellee Bar’s Product International Ltd. Bars of agreements executed a series SILER, GIBBONS, BEFORE: “sell, assign to BPI and transfer” “all for- COOK, Judges. Circuit eign and all any business countries for- eign to except the United States Canada

COOK, Judge. Circuit including right, title and interest (Bars) years, inventions, For over 30 Bar’s Products and all foreign patents, (BPI) Bars Products International together good trademarks '... with the shared the market for “Bar’s will of foreign worldwide Bars a business.” supplies. party brand agreements; Leaks” automotive one those Canada; Barton sold United States and BPI Huki executed the Lau rest internationally. This relationship sold their own names. Following years gained BPI amend. agreements, these three-and-a-half

Through finally BPI tried practice, motion foreign over the distribution control of Canada. a At the close of products jury. outside before Leaks the case Bar’s BPI main- years evidence, For the next 30 Federal Rule moved under relationship. a tained harmonious business of Civil Procedure 50 as. claims, to make ingredients BPI the remaining Bars sold raw of law on Bars’s matter party Leaks and neither granted, Bar’s Bars does which the territory. The on the other’s encroached court denied appeal. companies also booth two shared 50 motion on BPI’s breach-of- Bars’s Rule many years at the Aftermar- Automotive counter- unfair-competition contract and (AAPEX) Expo in Las Ve- ket Products returned verdict claims. The then guest. attending as Bars’s gas, with BPI on both counterclaims award- conventions, inter- At Bars referred these $1,560,195 dam- breach-of-contract ed buyers to BPI. national $974,849 for unfair ages and verdict, Bars re- competition. After the *5 relationship the ear- This deteriorated as a matter judgment its motion newed price the of 2000s Bars increased ly when law, for a new trial of or alternative purchase proposed materials and raw remittitur, de- which district court the goodwill. all of and back assets with the appeals, taking nied. Bars issue refused, two- Bars demanded When of its Rule 50 mo- court’s denial orders, which, when month time on lead all it grant tions and the court’s refusal increase, prompt- the price combined with to amend its trademark claim. leave to manufac- open plant BPI to its ed own ingredients necessary produce ture pur- products. Bars later

Bar’s Leaks II. rights brand to the “Rislone” chased the A. Breach Contract in- began selling products and automotive ternationally under label 2007. At that argues Bars first that the district trial, that some Bars’s President admitted motion granted have should renewed products it abroad were Rislone sold on BPI’s as a matter law thing” as Bars domes- “same what sold We re counterclaim. breach-of-contract Moreover, tically. products of those some City this novo. Barnes v. view decision de Prod- “Bar’s or “Bar’s referenced Leaks” Cincinnati, F.3d the first ucts” on their This marked labels. 2005). Judgment of law is as a matter products Bars sold the United time outside when, only construing evi appropriate blessing. without BPI’s States light most favorable to dence Vegas products BPI attended the Las nonmoving party, complete is a ab “there expo independent with its own booth verdict, support so that of fact to sence Bars Displeased, time in 2010. first juror found for no reasonable could have lawsuit, asserting trade- present filed Kiphart v. nonmoving party.” Saturn competition. infringement mark unfair (6th Cir. Corp., 251 F.3d contract for breach of counterclaimed Welding Sys. & (quoting Moore KUKA competition, maintaining that and unfair Robot Corp., by agreements Bars breached the 1973 1999)). Michigan the sub governs selling automotive abroad. claim. of BPI’s breach-of-contract stance Co., 10-X Mfg. The district court dismissed Bars’s See Wells claim leave trademark and refused Lau, Huki

The district court denied Bars’s renewed owned which shared an address motion because it that sufficient with And during period concluded Bars 1973. (1) Bars, supported: leading up agreements, evidence of an existence contract; Barton, operated enforceable single that Bars Huki Lau agree. entity: product through breached contract. We sold license agreements Barton his held individ- Scope Agreements 1. the 1973 capacity, using ual intellectual property that Barton or Huki Lau owned. A 1973 argues district court from letter counsel to by BPI—written allowing erred consider all after Barton sold his shares in Bars— transferring assignments the 1973 as part acknowledges reality. Bars, The letter refer- obligated of the “contract” that even “proper Assignments ences though Lau, Bars, Barton Frederic and Huki Barton, D. Huki Lau Inc. signed many assignments. [Bars] of those At trial [BPI],” and assign- confirms appeal, “[t]hese it maintains should be ments perfect ap- everything now single agreement bound pears to be in for commencing order trans- signed. rights fer to [BPI].” parol evidence rule forbids the in- this, Despite all Bars claims “BPI prior troduction evidence contem- to submit failed evidence that poraneous agreements vary Barton terms authority had the to enter agreements into purports written instrument to be *6 Yet, on behalf of Bars.” expression the “final as the district parties’] [the noted, signatories court none the agreement.” testi- Comp. Mich. Laws Prods, trial, 440.2202; meaning fied at that BPI § needed United Precision Co. v. rely on circumstantial evidence to Corp., 540 show Avco Fed.Appx. that 2013) Bars law). by the intended bound (applying Michigan But Barton assignments. and Huki Lau That finding a parties absent that the intended strongly suggests evidence document to that the represent complete the the agreements package a final were deal. agreement, and embodiment of their courts admit to explain extrinsic evidence 2. Breach Enters., parties’ the intent. See NAG Inc. Mich, Indus., All State argues even considering Bars that (1979) curiam). (per single contract, the agreements

N.W.2d And as a BPI' “[ejxtrinsic trial, or prior contempo- produced evidence of no evidence breach. At agreements negotiations argued raneous BPI con- is ad- Bars breached (1) ques- by: missible as on this threshold tract foreign bears trade- applying tion of mark registrations whether the written instrument in BPI countries where complete agreement trademarks; (2) par- selling between the [the owned relevant products Id. Leaks” ties].” with the “Bar’s trade- Canada; mark outside the U.S. and and Nothing agreement single Bars selling products brand .under “Rislone” signed writing identifies the as the “final to customers outside U.S. and Canada. expression” agreement. of the All parties’ extrinsic points jury $1,537,659 evidence the other The BPI awarded direction. Barton Bars of items founded and served “sales other than president and majority shareholder Bar’s Leaks United outside States years only just for over until before he Canada.” This could Rislone mean made assignments Ris- Barton also and the raw used to issue. materials make submitted, lone, properly returned the only products those because plaintiff); general sells. favor Vir than Leaks” Bars verdict “other Bar’s Inc,, Maint., Comput., that because it tual v. Prime Yet Bars reasons did selling (same). Rislone could own Rislone We agree- only theory in turn and constitute breach consider eách conclude non-compete provision or no ments committed include district court error. Bars non-solicitation covenant. insists either.

BPI failed to establish Theory Non-Competition a. arguing ever BPI disclaims argues that in the absence non-compete contain a agreements agree- in the 1973 non-compete provision provision implied non-solicitation cove- ments, no tenable BPI could have claim. purchased “the that it nant. maintains Bars, According non-compete agree- product rights the Bars’ exclusive sell ments in a “expressly must be reserved (outside of the U.S. line in all countries contract,” assign- the 1973 because Canada),” by breached sell- so, ments did not do court abroad, ing products automotive whether ought in favor ruled have “Rislone,” Leaks” or as “Bar’s labeled theory of BPI’s non-competition breach. ex- regardless of whether those - merits, addressing sug Before isted in 1973. argument gests that Bars waived The district instructed failing to the object instructions. in- that it could construe contract argued agree But that the because Bars agreement limits cluding either an non-compete agreement ments lack a competition implied or an non-solicitation multiple before motions form, general verdict how- covenant. court—including judg in its motion for ever, asked whether “Bars breached ment as a before the matter an contract.” enforceable pertinent gave pre instructions—Bars *7 of claims one several submitted “When argument appeal. served this See K&T not to the have submit jury should been Enters., Co., v. Zurich Ins. 97 F.3d ” ted, general ‘a ... cannot verdict stand.’ 171, 174-75 (6th Cir. Doherty Corp., Motors v. Am. 728 By framing interpretative nar- our task 1984) 334, (quoting Morrissey 344 Cir. rowly—does the contract include an ex- Am., v. Nat'l 544 F.2d Maritime Union of in- press provision—Bars non-competition 1976)). 19, (2d “[tjhere 26 is Otherwise clearly That, not. says vites answer: way no that the invalid ... know claim BPI, right question: jury is The not the Id. the sole basis was not verdict.” express not an to find non- asked Halecki, (quoting Pilots Ass’n v. United competition provision contract. The 619, 517, 613, 358 79 S.Ct. 3 L.Ed.2d U.S. jury court instructed that it district (1959)). Accordingly, 541 correct is into could find the have “entered parties if court erred submit-' agreement competition.” an limit[s] ting to jury non-competition either question The could the then becomes: theory of liability, non-solicitation a new in a way have contract construed See, e.g., City is Loesel v. trial warranted. competition.” “limits Frankenmuth, 452, 467-68 of 2012) interpretation generally is new Contract (ordering trial where question question becomes a the law presented instructions alternative but language ambiguous. fact if the is ories not contract liability, one of which was

407 Klapp Agency, ambiguous. Grp. Wyan v. United Ins. 468 therefore City of 459, 447, dotte, D’Avanzo, (quoting Mich. 663 N.W.2d 453-54 585 918), (citing Grocery agreements Hewett v. Biddle Pur Co. N.W.2d at The 1973 Co., chasing Mich. 221 all language transferring 286 N.W. include similar (1939)). ambiguity foreign The initial determina “all business all tion question is a review countries foreign we de the United States ex Canada, (citing cept novo. Id. Farm Bureau including right at 451 Mut. ... in any Nikkel, Ins. 460 Mich. 596 and all property] Co. v. such in [intellectual (1999)). ambigu A is cluding being N.W.2d contract but specified not limited to” trademarks, ous “if foreign two language susceptible “fully is to. as and entirely interpretations.” City more reasonable the same would by have been held Wyandotte Corp., assignment Rail Consol. this sale [Bars] had agreements (quoting been made.” The describe the Marsac, P.C., cooling D'Avanzo v. business sys Wise & sold as “radiator and products.” Mich.App. 918 tem N.W.2d (1997)). if the trial court finds textual Only reasonably This could language be read ambiguity it allow should the fact-finder rights transfer not the foreign extrinsic consider evidence such the Bars’s automotive radiator cooling conduct, “the parties’ statements right circa but also the representatives, past practice.” Klapp, product future line market Bars’s of radia- at 454 Penzien v. (quoting N.W.2d products. tor cooling The words “in- Co., Eng’g Dielectric Prods. Mich. cluding being “any but not to” and limited 130, 132(1965)). 132 N.W.2d clearly foreign countries” and all contem- plate the property transfer intellectual outset, At the faults other than is what described con- allowing district course-of-eon- court tract, making the transfer of associated agree finding duct evidence before future business a contract in- ambiguous. ments did terpretation. regard: err instructed the it finding ambiguity the conduct of could “consider Bars resists a parties” only focusing the contract way “find[s] the contracts describe ambiguous.” sought “foreign buy. court’s -in Although the business” correctly trigger explain for All the agreements struction states the *8 evidence, allowing gets “is to doing pertaining extrinsic it the ac radiator business tor wrong: judge, the jury, cooling system specify not the should and and products” See, finding e.g., make a of ambiguity. acquiring that BPI “is such desirous 451, Klapp, foreign 663 454. to N.W.2d Nonethe business in all countries the less, not jury except According “we will set aside a verdict United States Canada.” Bars, faulty technically jury present-tense the basis of a to of the the verb use “is” parties instruction harmless.” when the error is makes clear the intended Music, Bridgeport foreign only Inc. v. Record to transfer Bars’s business UMG 1973, (6th 2009) ings, Inc., Cir. property 274 and intellectual (citing Owens-Corning Fiberg Barnes v. force, argument has the but use Corp., las 201 822 of the not bear present-tense verb does the 2000)). controlling assigns weight it. “susceptible “[L]egal pres- agreements frequently drafters use 1973 interpretations,” present two or more reasonable ent tense to cover 408 Multimatic, 2007, and instead treated Int tween Faurecia

future.” 6.43, Inc., partner BPI as international USA, Fed.Appx. its exclusive Sys. expanded 2009); presence beyond also In re as BPI’s see even Stratford Tex., in that Bars serviced 1973. markets Third, (“[T]he may products of a some- sell tense verb when Bars wanted present sought in it past to the the future Mexico obtained a times refer [,] exchange pay- ... present license from BPI [further- as to the well may this more, licensing tense ment of fees. From conduct present used when (internal actually juror could find that Bars indefinite.” the time is here, omitted)). right granted And the use BPI the exclusive sell its citation am- present-tense little resolve the current and future abroad. does in the contract as whole. biguity present Theory b. Implied Nonr-Solicitation

First, nature that Bars would describe the present tense its business that no argues next reason Second, while one of the unremarkable. juror have found a breach of the able could foreign transfers agreements “such covenant. implied non-solicitation “[U]nder .referencing business,” clearly pream- law, Michigan along sale of a business ble, “all foreign transfer busi- the others good gives its accompanying with will rise ness,” referring to the business without precluding to a from covenant seller Third, doing.” “is the contracts that Bars soliciting to himself which he has back foreign business in transfer “all Lane, Agency, Inc. v. Worgess sold.” foreign to the United States countries (1976). Mich.App. 239 N.W.2d being not to” the including but limited Michigan requires Bars maintains that existing with Bars’s business associated proving of a “former solicitation custom parties Had in- property. intellectual er,” only that its international and asserts only the to transfer business asso- tended eight foreign were the customers cir- property Bars’s intellectual with ciated whom it sold raw materials. distributors to “any language ca all” and no that it Because the heard evidence being not “including but limited to” would customers, of those Bars con solicited one be redundant. not have cludes that could breached implied covenant. agree we find the Because only is flawed re- ambiguous, argument ments error re several harmless no letting spects. begin, To Bars cites am case sulted determine (or this biguity. given ambiguity, require would And court) only that Bars’s customers properly could consider extrinsic evidence find trial, foreign intent. parties’ discern the At as of were distributors. reading through That support for its sold distributors found the 1973 agreements parties’ con not its does mean end-users are course *9 of First, shortly Many duct. BPI a a matter law. com- Bars sent letter customers as panies products after intended for mass agreements all the were executed make “[tjhese stating assignments per consumption through but choose to sell are implied fect covenant everything appears now to be distributors. The would and - company commencing order of a transfer toothless such could sell Second, goodwill, then rights to no its entire sold business [BPI].” States, up an products the United Cana turn around and set identical busi- outside da, so it reaches consumers thirty years long for over be- ness as Mexico

409 through a chain. See non-compete different distribution ted the theory jury, Levine, 353, v. 315 24 court by Getter Mich. “erred failing impose N.W.2d a (1946) 149, (noting 152 a scope seller of business and duration on the al- goodwill may a leged” agreements. not start new busi- And to the extent the “represent ness and of a new business as a found breach non-solicitation cov- old”); Duvall, enant, continuation Colton v. Bars maintains that covenant 346, 48, 254 Mich. lasting 237 50 not supported by N.W. decades is Wor- (explaining that liberty gess. seller is “not at destroy he depreciate what transferred or Bars’s argument—that first perpetual a sold”).

what he non-compete worldwide is unreasonable— first, well, argument that BPI seems at required was reasonable. No one “[njever disputes to show solicitation of is a long one the 1973 time.” Wol- Sign Powers, verine distributors also assumes that Works 248 Mich. (1929). agreements transferred then- N.W. But Bars existing foreign relies heavily As analyzing business. discussed cases the rea- above, however, express sonableness non-compete could construe claus- in employment the contract to es transfer to BPI all foreign business-sale con- eases, tracts. In cooling products, business radiator and such the duration and just geographic not scope specified, the business Bars are doing was and the analyzes And Worgess express 1973. because the core of terms to a deter- “soliciting claim is mine they back ... that which whether are light reasonable in [is] sold,” Worgess, any legitimate See, business N.W.2d interests. Med., e.g., St. P jury heard, Borgiel, matters. As Clair C. v. distinction products Mich.App. Bars sold automotive abroad un- N.W.2d 918-19 (2006). brand, argument many jury, der the Rislone to the which were howev- er, similar to or not that the products agreements the same as in- clause, an express noncompete sold as “Bar’s Leaks.” clude also but that, cases, evidence rather that Bars sold heard some exclusive right simply placed cooling to sell Bars’s radiator Rislone sticker over “Bar’s products products involving Leaks” abroad. Cases displayed them at express Moreover, non-compete provide clauses therefore lit- international trade shows. some tle products instruction. the Rislone sold abroad refer- enced “Bar’s Leaks” or “Bar’s Products” Even if argument we entertain Bars’s juror on their labels. A reasonable could analyze agreements the 1973 as we conclude that Bars “solicited back” the an express non-compete, would we would foreign business that selling sold still not for denying fault the district court substantially the same under “Agreements as matter law. Rislone brand name. compete permissible under Michigan long they are reason law Scope Alleged

c. and Duration Errors Corp. Borzym, able.” Thermatool (1998). presents argu final Mic.App. two N.W.2d why ments—both Though “inherently flawed—for fact- inquiry such denying judg specific erred in its motion of non- [t]he reasonableness compete question ment as a matter of law on BPI’s is a provision breach- *10 of-contract argues undisputed.” counterclaim. Bars that where relevant facts Cer Network, Dry Cleaning even if the district court properly submit- Restoration tified 410 2006) (“A curiam) 535, (per restriction that is 547 Corp., Tenke

L.L.C. v. F.3d (internal scope is 2007) geographic not limited in its quo citations omitted) (alteration unreasonable.”). necessarily origi in tation marks context, nal), “the re In the business-sale of a to the lack time objection broad as the may be as business straint implied limitation on the non-solicitation agreement of by the sufficient covered unconvincing. Bars equally covenant is competition therewith.” scope prevent to Worgess stating in language latches onto 289, Hotter, 373 Mich. Owens v. the “for a covenant lasts suffi- (1964); 404, see also Wood N.W.2d length cient of time in to allow [the order Co., 396 Supply Overall ward Cadillac make its buyer] to to itself and attract own 710, 379, 240 Mich. N.W.2d Worgess, sold.” seller] which [the of non- (noting the reasonableness at accuses the district N.W.2d 422. Bars in agreements employer- competition the “puntfing]” court of on the time-limit issue employee “generally context is scrutinized jury “basically the to because allowed rigorously than more reasonableness pick limit it found reason- time whatever compete to of not to the covenant incident Worgess But clear able.” makes business”). sale a length time,” covenant “exists no.set disputed ev parties almost Because question to be “is determined fact regarding ery fact material what 422 (emphasis Id. by the trier of fact.” at agreements conveyed, the district added). Appeals Michigan Court properly decide allowed- Id. emphasized point repeatedly. competi the contract’s reasonableness course, just Of an issue because is tion-limiting See Restora effect. Certified question not mean district fact does tion, 511 at 547. Bars BPI “all sold anything court must accept finds. any foreign business all countries factfinder, might agree Were we the we that a foreign the United States.” Given implied expired Bars with covenant an may restraint the business-sale context began selling before Rislone. But re- be “as as the business broad covered respect spect Worgess and scope agreement and sufficient jury’s entering judg- role prevents us prevent therewith,” has competition “no ment as reason- law unless matter extending not convinced us that a restraint juror” the implied able could have found is foreign countries all unreasonable Kiphart, covenant to still effect. Owens, 129 particular these circumstances. F,3d Moore, at 581 at (quoting 406; Sys. at see also New N.W.2d World high That bar one that Bars is a Jones, 06-11603, Corp. v. No. 2009 WL fails clear. (E.D. Apr. at *11 Mich. Viewing light the evidence most (a agreement non-competition without BPI, non-compete favorable to both “can geographic limitations .be and non-solicitation theories submitted actually employer legitimate has legal evidentiary enjoy sup- world”); throughout business interests port. accordingly We affirm Williams, 06- Co. v. No. ACS Consultant judgment respect court’s with BPI’s (E.D. at Mich. 2006 WL *7 counterclaim. breach-of-contract 6,2006) Apr. (upholding agreement prohib iting competition because states Competition B. Unfair states); plaintiff all 50 Capaldi serviced L.L.C., argues that it entitled Transp., No. next LiftAid (Mich. WL *4 Ct. a matter of Oct. App. *11 unfair-competition ing First, counterclaim motion. because the court Bars’s credited on the claim the same un- testimony suggesting registered relies conduct that Bars derlying BPI’s counter- in foreign trademarks breach-of-contract countries where alternative, Second, claim. In the that BPI Bars asserts owned the relevant marks. damages causally BPI prove to con- failed the court cited evidence attempt- that Bars conduct, any thereby nected unfair war- ed to sell raw materials to Sonax—one of reversal, remittitur, ranting European a new trial BPI’s licensees—for use in damages. on products, “Bar’s Leaks” “conspired products with others sell [in] countries Michigan prohibits “any conduct where BPI held trademarks that is or deceptive fraudulent and tends Third, products.” concluded Indus., public.” mislead the ATCO Inc. “may attempted have to deceive the Corp., 232055, 235398, v. Sentek Nos. public or those purchasing (Mich. WL at *3 App. July Ct. had authority [it] sell such curiam) 2003) Clairol, (per (citing Inc. products outside the United States and v Boston Berkley, Discount Ctr. of Canada.” 1979)). As a tort, competition unfair requires Assuming, deciding, breach without that these “duty separate and distinct from breach acts constitute unfair competition under law, of contract.” v. Montgomery Haas & Michigan Ward BPI prove damages failed to Co., A causally connected that conduct. The plaintiff competition that establishes unfair properly district court instructed the sus-, actually can recover the “loss must prove that BPI damages “sustained by plaintiff as the tained direct natural result of competi- as a Bar’s unfair consequence trial, however, [defendant’s unfair] acts.” tion.” At BPI failed to dis- Liberty Corp. v. Crowley, Oil & tinguish Milner between breach-of-contract and Co., 241, 244 unfair-competition fact, 270 Mich. damages N.W. at all. In (1935). “[Djamages or BPI which uncertain not even attempt did to calculate its recovery.” speculative form cannot the basis of losses from the conduct that claims was .; Socony-Vacuum see also Oil Co. BPI’s damages unfair. model calculated Id Rosen, profits lost due to Bars’s international Oil); Liberty (applying Leaks, Rislone, Veteran Med. sales of Bar’s and raw Prods., Carp., materials, Bionix position Dev. No. but at trial BPI’s 1:05-cv-655, 2009 WL *10-14 on appeal these sales constitute (W.D. 31, 2009) Indeed, Mich. Mar. Lib contract. (applying damages breach of erty reversing expert Oil and verdict de where testified his model assumed presented Leaks, .Rislone, fendant “no evidence sale of Bar’s which begin a reasonable could and raw materials outside United damages determine amount of actual con- States Canada would “violate[ ] certainty”). with tract” BPI At oral between ar- Bars. gument BPI’s counsel conceded that its $974,849 The in dam- awarded attempt distinguish made no expert be- ages competition. opposing unfair In tween breach-of-contract and unfair-com- motion for as a renewed damages. petition law, matter of BPI cited three acts arguably duty “separate of a the burden of show breach Because shouldered proving causally and distinct” from breach connected to contract. claim, unfair-competition deny- court relied these acts in its failure do *12 412 1114(1); Hensley Mfg., § sion. U.S.C. Liberty Corp., 258 N.W. Oil is fatal. See

so ProPride, Inc., 603, 609 579 F.3d v. in its brief response, BPI’s both 244. at 2009). (6th amended proposed Bars’s Cir. out that point to argument, is at oral displayed the that BPI complaint alleged damages are less unfair-competition at the AAPEX “Bar’s Leaks” trademark on for request BPI’s total than agreed BPI Vegas. in that Las show unfair-com- breach-of-contract both its factors, but the first third had shown that enough. But True claims. petition mark at the of the disputed its use that with prove BPI’s failure not excuse does “use commerce” constituted show con- damages causally certainty Cana- proof sales U.S. absence Liber- See unfair conduct. nected to Bars’s customers. dian 244. The dam- Corp., 258 N.W. ty Oil the maximum “beyond thus ages award is motion court denied Bars’s The district reasonably could damages that display BPI’s It that amend. allowed any harm compensatory” to be find “may mark at AAPEX Bar’s Leaks un- BPI of Bars’s as a result suffered the mark [BPI] used ] establish Champion Outlook v. competition. fair See admission given But Bars’s in commerce.” (6th Nashville, Inc., Cir. guest AAPEX Bars’s BPI attended Shelby Cty., 220 (quoting Gregory court many years, the determined 2000)); see also authority mark” use the BPI “had at 244. We Liberty Corp., 258 N.W. authority, Oil at AAPEX. With court court’s denial concluded, separate of a booth therefore reverse district use infringement. Bars’s renewed motion not constitute alone could unfair-competi- allege any on BPI’s addi- a matter of law Bars did And because as the infringement, tion counterclaim. tional acts such sold the mark “use of Act Claim C. Bar’s Lanham Canada,” the United States within amendment, futile. deemed court appealed issue is whether The last dismissing merits, court erred we must addressing the district Before trademark-infringement claim of how to question Bars’s the threshold undertake motion to amend. Because denying its court’s conclusion construe on to amend leave to use the mark.” authority denied “had de that denial futility grounds, Enterprises., we review Inc. v. Allard cited Enters., Resources, Inc., Pearson Programming novo. See Evans v. Advanced 2001), Amend stands which rights taken allegations, proper principle ment is for the trademark most light' subject through registration as true and construed obtained Bars, to relief prior “state claim Id. at 572. rights acquired by favorable use. Atl. bearing Bell plausible on its face.” has no prior-use doctrine But the 544, 570, claim. Corp. Twombly, trademark-infringement U.S. on (2007). 1955, 167 of the L.Ed.2d actual S.Ct. the first user was both par- and the first “Bar’s trademark Leaks” infringe- claim for trademark To state a mark. ty register Act, Bars needed Lanham ment under the properly is more The court’s rationale that: facts to establish plead sufficient (cid:127) “acquies trademark; (2) in. the doctrine (1) grounded registered owns commerce; defense to trade An affirmative the mark cence.” defendant used requires acquiescence infringement, mark likely to cause confu- use finding plaintiffs part Though “a at 613. conduct did allow to be a *13 “guest[ at “many ]” that amounted to an assurance to the its AAPEX for de booth fendant, years” BPI separately, before attended express implied, plaintiff complaint in alleged, also no uncertain would not his trademark rights assert terms, that BPI “not authorized to use against Presley Elvis defendant.” En Plaintiffs in ters., Yours, Marks Inc., BARS manner.” Elvisly Inc. v. 936 F.2d complaint further describes how Bars 889, (6th 1991) (quoting 894 Cir. Sweet sent BPI prior a letter to the AAPEX Plastics, heart v. Forming, Inc. Detroit informing “infringement” show BPI that (4th 1039, 1984)). 743 1046 F.2d Cir. result would use of “[BPI’s] Acquiescence requires delay- unreasonable BARS Marks” at the At show. the motion enforcing rights, prejudice trademark stage, dismiss the district court must defendant, showing, by and a words or accept all well-pleaded factual allegations conduct, that trademark “ac holder Hains, 334, Logsdon as true. 492 v. F.3d tive[ly] of the consent[ed]” use mark. (6th 2007) (citing 340 Cir. v. City Gazette Va., What-A-Burger v. Inc. Whatabur Pontiac, (6th 41 F.3d 1064 Cir. ger, Christi, Tex., Inc. Corpus 1994)). (4th 2004) (quoting 452 Cir. Sara Lee course, Corp. Kayser-Roth might Of Corp., have disregarded 1996)). Bars’s disclaiming statement asserted this authority eonclusory belied defense its and advances an answer allegations complaint. other But acquiescence on argument appeal. disregard single averment, even if we Courts not dismiss should based an complaint a still whole fails to un- undisputed affirmative “the defense unless ambiguously acquiescence. establish For conclusively facts an affirmative establish thing, one complaint nothing says law,” Hensley defense as a matter of Mfg., actually about whether BPI used the example 579 F.3d at for when “the “Bar’s Leaks” trademark when awas plaintiffs allegations own that a show de- guest at complaint Bars’s booth. The fense that legally exists defeats the claim states Bars was “exhibitor” and Genentech, Inc., for relief.” Marsh v. that BPI at “guest[ ] was the Plaintiff’s 2012) (quoting F.3d 5B booth,” but is silent on whether BPI actu- Miller, Wright, Charles Alan Mary Arthur ally displayed or otherwise used Marcus, Kay Kane & Richard Federal most, At complaint marks. establishes (3d § Practice & at Procedure ed. that Bars physically allowed BPI be 2004)). acquiescence is fact- Because booth, present in Bars’s where Bars dis- requires qualitative bound defense “a another, played its For own marks. even if parties’ examination of words con- affirmatively had to BPI consented duct and an equitable evaluation mark, displaying the “Bar’s Leaks” length of and the delay degree use its own It consented such booth. prejudice defendant,” to the it is generally is certainly possible that to the extent susceptible not plead- at the resolution inviting BPI can construed as consent ing stage. 2U, Hyson Hyson Inc. v. USA all, at on BPI contingent displaying was Ltd., product side-by-side with Bars. See Here, Water, allegations proposed Bars’s Everything Just But Add Water, Inc., 3:04-CV-2085-H, not complaint “conclusively amended do No. Civ. (N.D. of acquiescence May establish” the *3 defense “as Tex. WL 18, 2005) Hensley Mfg., (denying matter law.” to dismiss on motion grounds plaintiff tition claim thus dis- acquiescence where had REVERSE trict court’s denied agreed to sue previously not defendant motion on that claim. post-verdict renewed Texas, “pos- because it outside use [plaintiffs acquiescence sible was We the district court’s deni- REVERSE upon using contingent [defendant motion to file an al leave Texas,” mark which had defendant [the] claim amended and remand trademark done). Finally, allegedly Bars informed proceedings. further *14 it prior that could not use the show GIBBONS, JULIA Circuit SMITH suggests “Bar’s This the Leaks” mark. Judge, concurring. any prior question whether Bars revoked consent, so, I opinion that in the majority whether revocation concur but say would more in connection with acquiescence bit BPI’s defeats defense. infringement of Bar’s claim. remand sum, complaint allegations In not do The majority notes that the district coui-t conclusively Bars acquiesced that establish no proof had address whether occasion BPI’s use Leaks Bar’s trademark of infringing necessary sales is to state a may ultimately It AAPEX. that BPI at But trademark claim. court district establishing in acquiescence, succeeds but may on well have remand address not a conclusion is such dictated whether conduct here can constitute complaint. Accordingly, we reverse the dis- infringement. Although our no court has court’s trict motion denial authority great weight on point, leave amend. advertising that “mere authority is point One final brief discus- warrants alone, standing not constitute ‘use’ [does] argues Bars court sion. that district meaning of the of the mark within on the leave amend alternative refused Perosa, S.R.L., Lahnam Buti v. Act.” (2d. of a grounds promotional 1998); mere use F.3d see Cir. also Cou trademark, proof infringing Playdom, ture v. absent (Fed. 2015); sales, Bancorp, Cir. Int’l LLC v. infringement. not is But trademark de des Societe des Baines et du Cercle Mer no such thing. did The court Monaco, Estrangers 361- simply held because 2003); Corp. Sensient Techs. v. display of the consented to BPI’s Co., SensoryEffects Flavor AAPEX, mark at Bars would to al- have 2010); 759-63 Guantanamera Ci infringing other lege some conduct to state Habanos, S.A., gar Co. Corporacion a claim. Because the district erred in (D.D.C. 106, 110 F.Supp.2d it is And finding it pleading consent at the stage, noninfringing uncertain sales whether no occasion to proof had address whether abroad constitute use of can the mark infringing necessary to sales is state a party commerce. Neither briefed has too express trademark claim. We view no issue, circumstances, these under we on that issue. it appeal. elect to consider on initially not Whether this issue is resolved III. pleading stage of proof litigation For these reasons we AFFIRM the dis- court, day. trial we leave for another trict court’s favor BPI post-verdict denied renewed motion SILER, Judge, concurring in Circuit on claim. the breach-of-contract part dissenting part. agree sepa- BPI could

We show no appeal on issues raised are narrow. reason, majori- For unfair-compe- rate its I concur with the damages support II.C., ty opinion in I The majority plaintiff Sections II.A. and but is correct that a suffering competition dissent unfair respectfully damages as to II.B. Section can Products, actually (“Bars”) only the “loss recover sus- Bar’s not does by plaintiff tained the direct and natural challenge testimony inadmissible consequence of acts.” unfair] [defendant’s (“BPI”) International’s Products Liberty Corp, Crowley, Oil Milner & expert. Bars also does assert Co., 270 Mich. N.W. on appeal—or through preserve its re- (1935). this court has also But cited Liber- for judgment newed as a matter of motion ty proposition Oil for the “some deficiency law—any prejudicial damages or loss of evidence” of “measured In- competition.1 instructions unfair profits” required. Socony-Vacuum Oil stead, appeal cabins whether Rosen, Co. v. 636-37 overlaps the evidence between coun- Oil). (applying Liberty Although terclaims of breach contract and unfair *15 Socony-Vacuum declined to address what competition. I the of would denial affirm of measure is to evidence sufficient ascer- as a of judgment matter law because the amount, damages tain an exact it nonethe- trial record contained evidence differenti- less judgment the the affirmed trial ating those Under our two counterclaims. pres- record because evidence was review, majority goes of the too standard Id.) Co., ent. Fuelgas see also Skimin v. far to suggest that minds could 523, 339 Mich. N.W.2d not separate presented the at evidence (“The damages fact that cannot meas- trial. easily ured or with certainty mathematical Reversing denial of accuracy a court’s a ground is no for absolute de- nying (citation omitted)). for judgment motion as a matter renewed them.” of requires showing “viewing law a The trial record demonstrates the light the evidence most favorable to jury heard from fact evidence witnesses non-moving party, party the giving that deceptive and experts about conduct and inferences, of benefit all reasonable losses Among to such attributable conduct. genuine there no is issue of material fact things, expert other the BPI’s testified for jury, and reasonable minds could damages that his models assumed “liability come to but favor of one conclusion in is parsed found” and sales attrib- “which LFP, Inc., moving party.” Balsley v. uted expert provided to the breach.” The (6th 2012) (citation omit Cir. on depending various calculations legal ted). evidence, may weigh not “[W]e asserted, theory accounting product for witnesses, question credibility similarity and'dissimilarity including when judgment for that of own substitute our during BPI’s excluding units. counsel Servs., jury.” Smith v. Rock-Tenn damages oral argument characterized the 2016) between the counterclaims as “cumula- (citation omitted). tive,” Still, “apportioned.” not although argument specific charge 1. Bars at oral did before and after the admitted instructions, suggesting object given is waiver of charge constitutes the ob (citation omitted)); preserved legal jection.” practice Civ. that its motion Fed. R. P. 51(c)(1) ("A objects an party is Bars’s conduct who theories. Our law clear that instruc See, give e.g., tion or the amounts waiver. Clarksville-Mont failure an instruction must Co., record, Sys. Gypsum stating distinctly gomery Cnty. do so on School v. U.S. 1991) ("We grounds objected first matter to and the objection.”). object note that to a Clarksville’s failure to presented at trial expert range evidence than concede failed rather counterclaims, testimony BPI’s fact light presented distinguish between contends, expert witnesses.” Bar’s Prods. majority counsel 10-14321, Int’l, Prods. informa- Bar’s No. WL ample that the stated “had *4, Dist. at 2015 U.S. LEXIS segregate damages from breach tion to (E.D. 29, 2015). Sept. *11 from unfair Mich. damages contract and the record us and On the before standard competition.” adhere, to which we must we review persuade fails to that the record not reverse that conclusion. For should singular conclusion that compels the more reasons, respectfully I dissent these particularized required evidence part and would affirm the district court’s prove competition. Neither Bars unfair as a matter law on denial majority requiring cites case nor competition. counterclaim for unfair jury argument separate action, opposed each cause one request. Pa. Co.

lump sum See R.R.

McKinley, 288 F.2d (declining adopt “procedural arguments damages).

blueprint” about such case law was extant

And even *16 form, ar- preserve Bars did not

some in-

gument improperly that the was damages. on how to On

structed calculate separate form with line items

a verdict action, for each cause was America, UNITED STATES asked, damages, the amount of “State Plaintiff-Appellee, Plain- any, you by find were caused competing unfairly tiff Bars with Defen- JACKSON, dants.” reminded The Thomas Defendant- “[bjreach jury that of contract does not Appellant. competition,” constitute unfair and that No. 15-4070 competition consideration of unfair Appeals, “separately should be resolved United States Court parties.” of contract Sixth breach between Circuit. deliberations, juiy took During 21, 2016 Filed November requesting instructions earnest a' copies expert calculator and trial exhib- $2,815,062 Considering a request of

its.

damages—in damages addition to future $8,327,433—the $974,849 awarded trial, presented of evidence view Bars argues appeal

none of which

inadmissible. jury’s competition verdict on unfair trial not be disturbed. The

should much: “The Court finds that

concluded jury’s award are within the