*1 jurisdiction lack of we DISMISS 07-74042, and in No. we for review
petition in No. 10- appeal moot DISMISS 16491. ARIZONA, INC., Plaintiff-
SKYDIVE Counter-Defendant-Appellee,
v. QUATTROCCHI; Butler, Cary Ben
Defendants-Appellants, Inc.; USSO, LLC, 1800SkyR CASC, dba SC, ide, 1800Skyride.com; Atlanta aka Center; Skydiving Inc. aka Atlanta Corporation, IGOVincent, Inc., Georgia ndants-Counter-Claimants-A Defe ppellants,
v. Hill, Third-Party- Larry Defendant-Appellee. Inc., Plaintiff- Counter-Defendant-
Appellant, Butler, Cary Quattrocchi; Ben Defendants-Appellees, Inc.; USSO, 1800SkyR CASC, LLC, dba SC, ide, 1800Skyride.com; aka Atlanta Corporation, Inc.; IGOVincent, Georgia Inc., a nts-Counter-Claimant Defenda s-Appellees,
Larry Hill, Third-Party-Defendant. 10-16099, 10-16196.
Nos. Appeals, Court of United States Ninth Circuit. Argued Jan. 2012. and Submitted March 2012. Filed
OPINION
SMITH, Judge: M. Circuit operates Arizona owns and one largest skydiving centers Butler, Quattrocchi,
world. Defendants SC, CASC, Inc., Inc., Atlanta and IGOVin- SKYRIDE) cent, Inc. (collectively, operate an Internet telephone-based advertis- service, *4 ing arrange- making skydiving customers, for issuing ments and certifi- that can drop cates be redeemed at various country. zones around the Ari- Skydive for advertising, zona sued SKYRIDE false infringement trademark and cybersquat- ting. Following partial summary judg- trial, and a ment Skydive awarded Arizona million actual damages for $1 advertising, false million in actual $2.5 for infringement, trademark $2,500,004 profits resulting from the infringement, $600,000 trademark and for statutory cybersquatting damages. The district court denied SKYRIDE’s motions (argued) Daniel H. Brombert and Timo- verdict, to reduce judgment for thy Butler, A. Quinn Emanuel Urquhart & verdict, remittitur, notwithstanding the for Sullivan, LLP, CA, Shores, Redwood for trial, and for new and instead doubled the defendants-appellants. Skydive Arizona’s million actual dam- $1 Gibbs, Sid Leach (argued), Martha E. ages award for false advertising and $2.5 Limon-Wynn, and Monica A. &Snell Wil- million award for trademark infringement. mer, LLP, Phoenix, AZ, for plaintiff- $600,000 The final totaled appellee. statutory damages, million in enhanced $7 $2,500,004 and in dis-
gorged plus attorney fees. The permanent also entered a injunction against operations in Arizona. appeals SKYRIDE now grant partial district court’s summary JR., NOONAN, Before: JOHN T. and judgment, and SMITH, JR., MILAN D. Judges, Circuit awards, the district court’s RAKOFF, and JED S. Senior District Skydive enhancement. Arizona Judge.* cross-appeals the district court’s limitation Opinion by SMITH, Judge MILAN D. permanent Arizona, injunction JR.; Partial Concurrence and Partial injunction and seeks a against nationwide Dissent Judge NOONAN. jurisdiction SKYRIDE. We have * Rakoff, York, The Honorable Jed S. sitting by Senior District Southern District of New des- Judge for the U.S. District ignation. Court ChandlerSkydiving, MesaSkydiving, as to Glen- and we affirm all 28 U.S.C. claims, doubling daleSkydiving, GilbertSkydiving, for the of actual except PeoriaS- YumaSkydiv- TucsonSkydiving, kydiving, ing, FlagstaffSkydiving. SKYRIDE AND PROCEDURAL
FACTUAL numerous registered also domain names BACKGROUND with for use connection the SKYRIDE Arizona, Inc., Skydive Appellee located business, skydivearizona.net, including ari- operated under the Eloy, has skydivingarizo- zonaskydive.com, mark since ARIZONA” “SKYDIVE na.com. Arizona neither adver- the most well known and is now one of with, from, accepted tised nor certificates in the skydiving centers world. SKYRIDE. 160,000 145,000 Arizona hosts between 30, 2005, August On year. It furnishes its skydives each SKYRIDE, complaint against filed a as- events planes personnel skydiving (1) Designation False serting claims in 30 outside of Arizona. states Origin Competition, and Unfair under Sec- *5 widely skydiving in Arizona is known the 43(a) Act, tion of Lanham 15 the U.S.C. sky- hosted community, and has national (false 1115(a) (2) § advertising), Trade- Skydive Arizona has diving competitions. Infringement, mark 15 under U.S.C. multiple on television also been featured 1125(a)(trademark (3) § infringement), and extensively programs, and advertises Designation Origin False of and Unfair Internet, as well as in national and 43(d) of Competition, under Section skydiving magazines, international Phoe- 1125(d) Act, (cybers- Lanham U.S.C. hotels, Pages, Yellow and in nix-area alleged quatting). Arizona University Arizona’s and Arizona wishing to SKYRIDE misled consumers University’s college newspapers. State skydive through in Arizona false advertise- essentially SKYRIDE acts third- misrepresen- on their websites that ments booking service for party advertising ownership skydiving ted SKYRIDE’s advertisers, skydiving centers. As reality, in Arizona. In facilities SKYRIDE pro- and Internet provide phone national operated skydiving owned nor fa- neither individual motional services to various Arizona, strategic in but made a cilities zones, drop exchange in for fee. When represent ownership business decision to booking agent, acts as a cus- it they thought would attract more SKYRIDE, online pay tomers either Skydive Arizona further customers. phone, over the for a certificate can skydiving claimed that SKYRIDE sold at drop be redeemed various zones around by trading upon Skydive Ari- certificates country. Upon redemption, SKYR- misleading customers zona’s expected pay skydiving IDE is facil- believing into Arizona would ity by the used customer. accept SKYRIDE certificates. booking As of their part advertising 2, 2009, February On the district court business, operated SKYRIDE owned and summary in partial judgment entered fa- describing skydiving numerous websites for false vor of adver- locations, multiple opportunities without 43(a) tising claim under section Lan- drop specific zones. Howev- reference 2, 2009, jury ham Act. On October found er, operated SKYRIDE also owned and Skydive Arizona the remain- in favor of referencing specifically numerous websites Specifically, ing claims. awarded PhoenixSkydiving, including false for willful ad- million ScottsdaleSkydiving, TempeSkydiving, $1 43(a) Quinta Corp. the Lan- record. La vertising, under section v. Heart Act, LLC, ham million Props. $2.5 land F.3d infringement, along with Cir.2010). trademark willful $2,500,004 statutory- scope injunc review the of an $100,000 violating each for damages of six tion for abuse of discretion. See Internet 43(d). names, section domain W., Specialties v. Milon-Digiorgio Inc. denying its March order Enters., Inc., Cir. trial, motions for a new re- 2009). remittitur, duction of verdict, notwithstanding judgment DISCUSSION
district court doubled advertising awards for false and trade- Summary Judgment I. Partial resulting mark in million infringement, $5 Advertising False infringement for trademark and million $2 We first consider whether the district advertising. for false It declined to in- erred in granting partial summary profits. crease the Arizona on its false judg- The district court entered final advertising claim. are There five elements April parties ment on 2010. Both time- to a false claim under Section appealed. ly 43(a) Lanham Act: (1) OF STANDARD REVIEW false of fact de- statement *6 AND JURISDICTION fendant in a commercial advertise- ment about own or its another’s summary We rul judgment review product; See, ings e.g., Dynamic, de novo. Fortune Inc. v. Victoria’s Secret Stores Brand (2) the actually statement or deceived (9th Cir.2010). Mgm’t., 1025, 618 F.3d has the to tendency deceive a sub- segment audience; stantial of its equitable
Because discre (3) material, deception in tion that that it is district courts mon exercise over etary Act, likely relief Lanham we influence the de- purchasing cision; review such rulings abuse of discretion. See, Watch, U.S.A., e.g., Rolex Inc. v. Mi (4) the defendant caused its false state- Co., (9th Cir.1999). chel 179 F.3d commerce; ment to enter interstate we Correspondingly, uphold review orders ing jury damages denying awards and new (5) plaintiff been likely has or is trials for abuse discretion. Las Tortu injured be as a result of the false Vegas Metro. Dep’t, Police 556 F.3d statement, either direct diversion (9th Cir.2009). 1086-87 A ruling consti of sales from itself to defendant or
tutes an abuse of discretion if the record by a lessening associ- contains no rationally supporting evidence products. ated with its See, Co., e.g., conclusion. Lindy Pen 1125(a)(1)(B); 15 U.S.C. Southland Sod Inc. v. Bic Corp., Pen Co., Farms Stover Seed reviewing In a dis whether (9th Cir.1997). Although materiality trict court its denying abused discretion in false trial, “typically” claims is motion for remittitur or new we proven through surveys, nothing consumer jury’s decide whether the sup award was ported by Act, reasonable the Lanham under our prece- inferences and as nor sessments, dents, on requires based substantial evidence plaintiff to use such sur- Farms, materiality district court’s F.3d at tations. The Sod veys. Southland finding by Skydive was further supported 1140. Arizona’s evidence numerous consumers disputes appeal, On SKYRIDE telephoned Ari- who came to materiality finding. court’s only the district facility having zona’s after been deceived contends that the Specifically, believing into there was an affiliation'be- granting partial erred district court Skydive Arizona and SKYRIDE. tween Skydive Arizona summary judgment to Accordingly, we hold that district advertising claims because its false finding materiality did not err in court materiality, namely evidence admitted declaration, upon Flynn’s and evi- based Flynn, of consumer James the declaration consumers, from af- grant dence other we disagree. ambiguous. was summary grant partial the district court’s ing partial firm found district court summary judgment. evi Flynn constituted direct declaration were statements Damages
dence that SKYRIDE’s II. purchasing consumers’ likely influence gravamen appeal of this turns on declaration, Flynn In his stated decisions. district court abused its dis- whether the bought SKYRIDE personally he had in upholding, enhancing, cretion and later on on the SKYRIDE’s certificates based Arizona’s award. representations line and advertisements SKYRIDE contends that at redeem the certificates that he could regard its with dam- abused discretion upon Flynn’s Skydive Arizona. Based (1) following ages grounds: on the four declaration, held upholding ma contained advertisements award, Arizona did SKYR indicating false statements terial concerning sufficient evidence present in the loca skydiving IDE facilities “had (2) damages; upholding amount not, when in fact did tions advertised because the *7 that consumers could re alternatively, or expenses failed to deduct SKYRIDE’s and certificates at loca deem [SKYRIDE’s] tes- “clearly costs based on the erroneous” they in could not.” tions where fact (3) timony expert; Skydive of Arizona’s proffer Skydive Arizona’s decision to enhancing jury’s damages award to the testimony of instead consumer declaration (4) SKYRIDE; upholding punish and surveys materiality not un- prove to does damages, enhancing the entire actual and summary partial for dermine its motion award, damages profits, statutory and survey Although a judgment. consumer grossly the was exces- proven materiality in this could also have of SKYRIDE’s sive. We address each case, to hold that it the we decline was turn, affirm district arguments and Indeed, as way materiality. prove to award, except to the court each Sod, consumer sur- we held in Southland of the actual award. enhancement used veys powerful tend to be most when advertising that dealing deceptive with Damages A. Actual 108 misleading.” true but “literally is Act, the Lanham Under Here, at 1140. Defendants’ adver- F.3d “(1) court, discretion,” may award “in misleading both tisements were and its false. (2) any damages sus defendant’s proved that consumers Flynn’s declaration (3) the by plaintiff, costs of tained and actually by had been confused SKYR- any right of action” a “violation of advertising represen- IDE’s websites 1112 registered mark in the draw make a registrant’ of a reasonable inferences Office, a violation and Trademark Patent and reasonable assessment. La fair (d) 43(a) ..., or a willful under section Quinta Corp., (emphasis at 603 F.3d 43(c)----” section
violation added). added). 1117(a) § (emphasis U.S.C. Skydive awarding In Arizona ac “any damages assesses sus- tual an jury considered ar plaintiff’ the same manner tained ray of customer evidence and three differ reasonably tort damages: as in fore- ent affirming financial record exhibits. In wrong. seeable harms caused See the district court noted Int’l, Nahum, Inc. DSPT (9th Cir.2010) significant Co., and “voluminous” evidence (citing Lindy Pen 1407; Skydive F.2d at see also Restatement concerning Arizona’s “stellar busi (Third) 36(1) Competition reputation,” ness and the hundreds of of Unfair (1995)). reviewing a award of Skydive of thousands dollars Arizona infringe- actual intentional spent in developing its ment, accept we “crude” measures dam- argues business. that this evi ages upon based reasonable inferences so dence was insufficient because long as those inferences are neither “inex- not provide specific Arizona did mathe ... orable fanciful.” Intel Corp. [nor] See jury matical formula for the use in Int’l, Inc., Terabyte F.3d calculating actual harm to Ari goodwill. disagree. zona’s is true It action, that,
In a trademark closing, the na at counsel for Ari proof required support ture jury zona asked the “fill in” the amount jury depends on the circumstances of damages that it found reasonable “subject of the case and is principles to the compensate Skydive Arizona for its Int’l, Inc., of equity.” See DSPT However, damages. counsel’s comment at 1223. The distinguish trier fact must was not an for the invitation con proof between fact jure the amount of out of -the the amount of because a mark vapor. contrary, To the throughout holder held to a lower in prov standard trial, Skydive presented to the ing the exact amount jury ample original evidence proving the Quinta Corp., See La at 342. In value of Arizona’s goodwill and measuring goodwill, harm to may scope depth of SKYRIDE’s harm plaintiffs expenditures consider in build *8 reputation. Skydive to Arizona’s reputation ing its in order to estimate the began by presenting jury to the harm to its reputation after a defendant’s three showing different exhibits its adver bad acts. See Corp. Smith Corona v. Peli tising expenditures period for a of ten kan, Inc., (M.D.Tenn. 452, F.Supp. 784 476 (from 2007), years expenditures 1997 to it 1992) (“[I]n to damage order calculate to a up reputa made to build the corporation’s goodwill due a competi to tion significant of its mark over a of period advertising, false tor’s one must take into time. presented Arizona then to account the amount of money expended by the jury multiple declarations and witness injured the corporation in promotion the of testimony proving that were customers trademark.”). Upon its causation, proving with, very Ari angry and blamed the plaintiffs evidentiary burden relaxes for, zona considerably. problems caused SKYRIDE. support To jury’s a only testimony variety there This came from a of need be sub permit stantial evidence to jury away to witnesses located as far as North
1113 building repu- costs of its Dakota, thereby demonstrating geo- evidence of the by tation, widespread of the harm caused harm to its reach of the graphic directed the Counsel also SKYRIDE. corrective goodwill, and of need for Skydive Arizona’s jury need to consider evidence, upon advertising. Based advertising, due to corrective undertake jury found the district court extremely harmful ramifications its damages could arrived at award have misrepresentations. SKYRIDE’s upon variety of ratio- based a different nales, including great value that section 1117 emphasize We reputation, costly Arizona’s the' original scope upon a wide of discretion “confers confusion, harm customer judge fashioning remedy.” a the district potential and the extent of geographic Brewing v. Fleischmann See Maier Co. grievances. Accordingly, customer we Distilling Corp., Cir.1968). hold not'abuse that the district court did 1117 demands neither Section quantification expert nor testi its empirical upholding discretion monetary a award of mony support award of actual it was provide can damages; many sources supported by reasonable inferences and upon information which a requisite assessments, upon evi- based substantial jury may calculate reasonable dence record. Spencer Hand Louis Vuitton S.A. Cf. (2d Cir.1985) bags 765 F.2d Corp., Disgorgement B. ofProñts based (upholding calculation reviewing an award of lost videotape on a statements made not ask the sub profits, we do whether “[r]ecovery under section 1117
noting that presented stance of the evidence to the quan is limited to in which the cases credible; jury only was correct or even we demonstrated”). tum actual is ascertain whether award was based willingness accept our “crude” Given reasonable inferences fair assessments damages in of intention measures of cases Quinta of the evidence in the record. La we infringement, al hold Corp., Questions F.3d at 342. of evi reasonable in upon calculation was based dentiary admissibility credibility are represented fair a assess ferences Skydive properly challenged either or dur ment of suffered before Corp., 16(c)(2)(D); at 621. Arizona. Intel see ing trial. Fed.R.Civ.P. Pharms., 509 v. Merrell Dow Daubert upheld court has Where 579, 597, 125 L.Ed.2d U.S. S.Ct. a motion for a denying (1993) (emphasizing “gatekeeping” trial, “virtually ruling such a is unas new evaluating function of the courts Carlson, Kode v. sailable.” expert testimony). Failure admissibility of invade the prov challenge to raise Daubert at trial causes “if the verdict ince right objec party waive the to raise weight contrary to clear the evi testimony of expert tions the substance *9 dence, upon pernicious is based false or Marbled Murrelet v. Bab post-trial. See prevent miscarriage or to evidence Cir.1996) bitt, 83 F.3d Cable, Inc., justice.” v. M.J. See Molski (“[T]he time to raise appropriate Daubert (9th Cir.2007). This is By object challenges failing is at trial. plausi The fact that no such case. mere ruling on request to evidence at trial arguments ble be made that could right objection, party an waives the such is too not warrant jury’s high verdict does admissibility appeal.”). on proffered Arizona to raise issues reversal. Id. request damages, of its support ability waived its challenge the sub- proffered testimony stance of testimony by Freed’s failing to expert, and rebuttal its Mr. object before, at, or trial. Gary profits analysis, In his lost Freed.
Freed estimated SKYRIDE’s revenues Damages C. Enhancement by calculating from Arizona the number of plain language The of the Lanham Arizona residents identified permits court, Act a district in its discre increasing records and then that number tion, to enter any “for sum above by missing 2.131 to account for files resi- the amount found as He multiplied dence information. then exceeding three times such amount.” 15 an average that number transaction 1117(a). U.S.C. “If the court shall find amount, adjusted and then for resulting that the amount of recovery based on from out-of-state revenue residents who profits is inadequate either or excessive Lastly, in Arizona. jumped Freed may the court in it's discretion judg enter 10%, added an interest factor of using the ment for such sum as the court shall find prejudgment applicable interest rate just, to be according to the circumstances Arizona law. Freed also rebutted the tes- timony case. Such sum in of SKYRIDE’s either expert, Dejesus, Lillian opined alleged who on above circumstances shall constitute com profits. deductions to SKYRIDE’s At no pensation (em penalty.” and not a Id. point during before or the trial did SKYR- added). phasis Thus, although judge IDE challenge the admissibility of Freed’s jury may up triple award the amount of testimony under Federal Rule of Evidence lost and costs to 702. compensate holder, a mark the Lanham Act has been construed to expressly forbid
SKYRIDE now contends that the award of to punish an infring district court abused its up discretion in Id.; er. Corp. BASF v. Old holding $2,500,004 World Trad jury’s award of Co., ing profits lost because the was based erroneous Spe calculations Freed. inquiry before us is not whether cifically, alleges that Freed’s SKYRIDE’s infringement justified willful clearly calculations were erroneous be the district court’s enhancement Sky- cause he did not properly deduct vendor dive Rather, Arizona’s actual damages. payments costs, or overhead ap he we must decide whether the district court plied improper an interest rate. When abused its discretion in enhancing Skydive SKYRIDE first raised arguments these Arizona’s actual punish SKYR- post-trial, rejected the district court them case, IDE. In a Lanham Act penalize grounds untimely, were “opprobrious defendants for conduct” is an and fell within province of a Daubert abuse of discretion. Jurgens v. McKasy, challenge. agree with the district (Fed.Cir.1991) (finding court. SKYRIDE’s claims challenging the the district court abused its discretion un- profits award all turn upon on der the Act Lanham when it cited both the substance credibility of Freed’s deterrence penalizing rationales for testimony; they fail to any assert basis for trebling damages against a willful infring- challenging the lost award based er). Indeed, upon “enhancement damages] [of record as it Accordingly, exists. we hold available to ensure that plaintiff did not abuse its discretion in upholding compensation.” receives Corp., BASF *10 award because SKYRIDE’s F.3d at 1096.
1115
However,
damages
assessing
whether a
doubling
the actual
excessive,
fact
grossly
actual
the
award is
that
“[t]he
as SKYRIDE’s
well
jury
“emphasize[d]
purpose
may
agreed
plain
have
with [the
rejected
of Defendants’ con
fully
expert]
nature
tiffs
and
the defendant’s
deceitful
on
The district court’s focus
the ver
duct.”
contentions ... does not render
”
“seeming disregard for the
SKYRIDE’s
monstrous.’
‘grossly
dict
excessive or
reputation
Inc.,
people they harmed and
Tidyman’s,
285
Hemmings v.
F.3d
Cir.2002).
it
suggests
1174, 1191(9th
enhanced the
sullied”
damages
response
award in
to
en
contends that the
SKYRIDE
See Skydive
SKYRIDE’s base willfulness.
(actual
damages, profits,
tire
Quattrocchi,
al,
Arizona, Inc. v.
et
No.
damages
cybers
statutory
award for
(D.Ariz.
2:05-cv-02656-DGC,
21
Mar.
at
it
quatting) should be vacated because
is
2010).
discussing
appro
Instead of
punitive.
dis
grossly excessive and
We
to
Ari
priate
compensate
award
agree. SKYRIDE claims that because
SKYRIDE,
to deter
district
zona or
company”
not a big
“SKYRIDE is
need for
court focused
SKYRIDE
nationwide gross
because its
revenues
“accept
wrongful
“appreciate”
“only
since
million” that
2003 are
it
$23
Although
Id.
ness of their conduct.”
should not be held accountable for a final
may
have considered a sec
district
award
over
million.
$10
it briefly
rationale when
ondary deterrent
present
any
SKYRIDE fails to
us with
knowing
discussed SKYRIDE’s
refusal
however,
authority,
a
allowing
defendant
acts,
infringing
we hold that such
cease its
escape liability
infringe
for trademark
possible considerations do
overcome
ment
by
and false
apparent
court’s
intent to pun
district
claiming, essentially,
small
that it is too
(Fed.
at 1564
Jurgens,
ish.
See
justify
end,
large
such a
award. To that
Cir.1991). The
context of the
broader
authority
completely inap
court’s enhancement discussion reveals its
posite.
&
Union
Plumbers
Steamfitters
punitive
Accordingly,
motivation.
because
against
involved a breach of contract claim
court’s
to enhance the
decision
jury
upon
a labor
union which the
relied
hinged
upon punishing
conspiracy
evidence
award excessive
SKYRIDE,
we reverse
willful conduct
only
who had
against defendant
court’s
the district
en
months.
been
business
three
hancement.
conspira
at
F.2d
824. Baldwin involved
drugging
cy
plaintiff by
to defraud a
him
Damages
“Grossly Excessive”
D.
gambling
while
was
to induce losses.
he
Profíts
SKYRIDE’s motion
trial.
CONCLUSION
reasons,
For
foregoing
we reverse
Injunction Cross-Ap-
III. Permanent
regard
with
to the district court’s doubling
peal
actual
and reinstate the
An injunction should be “tai
original
actual
award of mil-
$1
specific
lored
to eliminate
harm
advertising,
lion for false
million
$2.5
alleged,”
Winery
E.
Gallo
& J.
Gallo for
infringement.
trademark
We affirm
Co.,
Cattle
Cir.
the district
on all
court
other claims.
1992),
not be “so
but it should
narrow as to Thus, as
our
by
opinion, Skydive
modified
easy
invite
McComb v.
evasion.”
Jackson
Arizona is
awarded
million
$1
Co.,
187, 193,
ville
U.S.
Paper
69 S.Ct.
advertising,
for false
million
$2.5
(1949).
the course fragile Sharrock, nor as as Plaintiffs-Appellants, as nebulous It is neither reviewing reputation. personal 912 of the Restate- under section Torts, Second, the district court America,
ment UNITED STATES a matter of law. erred as Defendant-Appellee. is accounting purposes, For 10-16425. No. between the fair the difference
typically company and its un value market of Appeals, United Court States See, e.g., liabilities. derlying assets and Circuit. Ninth Harris, Memorial, Inc. v. Feb. 2012.* Submitted J.). (9th Cir.1980) (East, ac This Sky counting calculation is difficult since Filed March 2012. com publicly Arizona is not a traded dive Nonetheless, variety are a there pany. might employed be calcu
methods and the harm that asset lating goodwill by the Defendants. See Robert F. caused Reilly, Implica Nos. SFAS by M Acquired & tions Goodwill A (2006). Am. Bankr.Inst. J. 48 25-FEB of the actual dam- components As to the thousands dol- “the hundreds of ages, Arizona on spent adver- lars” considering are relevant in the value tising nothing to goodwill, but do establish of its They damage goodwill. to that not measure harm. The do are not a measure of the Defendants The business plaintiffs by Skydive is relevant. Its done figures own no diminution dives showed Nothing in the sup- in fact record sold. ports the assessment these dam- $2,500,000. ages amounting The dis- trict court needed to determine them Co., Inc. Bic Lindy See Pen evidence. Corp., 982 F.2d 1404-05 Pen Cir.1993) (Roll, J.)
* 34(a)(2). R.App. Fed. P. panel unanimously See concludes this case argument. without oral suitable decision