DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON DEFENDANT'S LACK OF INJURY

MICHAEL MERZ, Magistrate Judge

This case is before the Court on Motion of Plaintiff and Counter-Defendant The Iams Company and Counter-Defendant The Procter Gamble Company for Partial Summary Judgment on Nutro's Counterclaim Based on Lack of Injury (Doc. No. 207). Nutro opposes the Motion (Doc. No. 242) and Iams has filed a Reply in Support (Doc. Nos. 313, 314).

SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59 (1970). Nevertheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S. Ct. at 2510-11 (citations omitted). "The mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F. 2d 577, 582 (6th Cir. 1992) (quoting Gregg v. Allen-Bradley Co., 801 F. 2d 859, 863 (6th Cir. 1986). Therefore a court must make a preliminary assessment of the evidence, in order to decide whether the plaintiff's evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F. 3d 795 (6th Cir. 1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S. Ct. at 2510.

The moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

Analysis

Iams seeks summary judgment on the First, Second, Third, and Fourth Causes of Action in Nutro's Supplemental and Amended Counterclaim (Doc. No. 155). Those claims are for (1) unfair competition and false advertising in violation of the Lanham Act ( 15 U.S.C. § 1125); (2) common law unfair competition; (3) deceptive trade practices, unfair competition, and false advertising in violation of the Ohio Deceptive Trade Practices Act (Ohio Revised Code §§ 4165.01, et seq.); and common law commercial disparagement.

Iams asserts and Nutro does not deny that only an analysis under the Lanham Act is necessary because federal courts applying Ohio law have held that the analysis of a claim brought under the Ohio Deceptive Trade Practices is the same as that of a claim brought under the Lanham Act, citing Hassell v. Chrysler Corp., 982 F. Supp. 515, 526 (S.D. Ohio 1997), affd mem., 135 F.3d 778 (Fed. Cir. 1998); Royal Appliance Mfg. Co. v. Hoover Co., 845 F. Supp. 469, 471 n. 4 (N.D. Ohio 1994), and because the Ohio common law of unfair competition is not substantially dissimilar. Of course, it is Ohio law which controls Nutro's right to recover on the Second, Third, and Fourth Causes of Action. 28 U.S.C. § 1652; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 2d 1188 (1938).

The Lanham Act provides, in relevant part:

(a)(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — . . .

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

The sort of proof of these elements a plaintiff must show varies depending upon whether money damages or injunctive relief is sought. Podiatric Physicians at 614; Balance Dynamics Corp. v. Schmitt Industries, Inc., 204 F. 3d 683 (6^th Cir. 2000). Nutro seeks both monetary damages (lost profits, disgorgement of Iams' profits, damage control costs, and loss of goodwill) and permanent injunctive relief.

When a plaintiff seeks an award of monetary damages for false or misleading advertisement under the Lanham Act, he may show either that the defendant's advertisement is literally false or that it is true yet misleading or confusing. Podiatric Physicians at 614, citing Castrol, Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir. 1993). Where statements are literally false, a violation may be established without evidence that the statements actually misled consumers. Id., citing Johnson Johnson, Inc. v. GAC Int'l, Inc., 862 F.2d 975, 977 (2d Cir. 1988); PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 272 (2nd Cir. 1987). Actual deception is presumed. Id. citing U-Haul Int'l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1040 (9th Cir. 1986). Where statements are literally true, yet deceptive, or too ambiguous to support a finding of literal falsity, a violation can only be established by proof of actual deception (i.e., evidence that individual consumers perceived the advertisement in a way that misled them about the plaintiff's product). A plaintiff relying upon statements that are literally true yet misleading "cannot obtain relief by arguing how consumers could react; it must show how consumers actually do react." Podiatric Physicians at 614, citing Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 229 (3d Cir. 1990).

Injunctive relief may be obtained by showing only that the defendant's representations about its product have a tendency to deceive consumers and therefore are likely to injure plaintiff. Podiatric Physicians at 617, citing Max Daetwyler Corp. v. Input Graphics, Inc., 608 F. Supp. 1549, 1551 (E.D. Pa. 1985); see also Black Hills Jewelry Mfg. Co. v. Gold Rush, Inc., 633 F.2d 746, 753-54 (8th Cir. 1980). The difference in standards of proof is that a court can grant injunctive relief which protects both the consumer and the competitor, and indeed damage control costs which reimburse the competitor ( See Balance Dynamics), without creating a windfall to the plaintiff.

As the Sixth Circuit recognized in Podiatric Physicians, both the second and fifth elements of a Lanham Act claim are matters of causation. 185 F. 3d at 613. They might be restated as (2) did the defendant's statements cause or tend to cause a substantial portion of the intended audience to be deceived and (5) did the defendant's statements actually cause any injury to the plaintiff or are they likely to do so in the future. Both elements of causation must be proved. That is, if a substantial portion of the intended audience is actually deceived but makes no change in its buying patterns as a result (i.e., does not buy more of the false advertiser's product or less of the competitor's product), the plaintiff competitor has suffered no actual injury and is not entitled to its own lost profits or disgorgement of the defendant's profits. If a substantial portion of the intended audience was likely to be deceived, but a plaintiff competitor prevented that with counteradvertising, that plaintiff can recover its reasonable damage control costs. If a substantial portion of the intended audience is likely to be deceived in the future, the plaintiff competitor can obtain injunctive relief to prevent the future harm.

It appears to the Court that the presence of these two causation elements in the case has caused a failure of the parties' memoranda to squarely address each other. Nutro accuses Iams of confusing the actual deception and actual injury elements (Opposition, Doc. No. 242, at 1). Iams responds that Nutro has not explained the asserted confusion and thus it cannot respond (Reply, Doc. No. 313, at 3 n. 5). Since proof of both the deception and injury elements is necessary for Nutro to recover, Iams will be entitled to summary judgment if it can show that there is no genuine issue of material fact on either one of these elements.

The allegedly false or misleading advertisements at issue in this case are (1) Iams' modified feeding instructions printed on bags of its adult dog food from and after the time it "re-launched" its Chunks brand in 1999, (2) the associated feeding calculator which appeared on Iams' website at approximately the same time, and (3) two point-of-sale advertisements which Iams caused to be disseminated in connection with the re-launch.

As Nutro notes (Opposition, Doc. No. 242, at 10), for the purposes of the instant Motion, Iams has not challenged Nutro's allegations that the reduced feeding instructions and related advertising are literally false, that the same statements are material, or that they have been disseminated in interstate commerce. The assumed literal falsity of the statements in issue gives rise to a presumption of actual deception. Podiatric Physicians, 185 F. 3d at 614. In instances of comparative advertising, where the competitor's products are specifically targeted, a plaintiff is also entitled to a presumption of money damages. Balance Dynamics, 204 F. 3d at 694-95, citing Porous Media Corp. v. Pall Corp., 110 F. 3d 1329 (8^th Cir. 1997), and Harper House, Inc., v. Thomas Nelson, Inc., 889 F. 2d 197, 209 fn. 8 (9^th Cir. 1989).

Iams asserts that it has overcome both of these presumptions by virtue of the evidence it has presented. It notes that under Fed.R.Evid. 301, a presumption shifts the burden of going forward by requiring the opposing party to present evidence in rebuttal. However, it does not shift the burden of persuasion. Once sufficient evidence has been submitted in rebuttal to permit a jury to return a verdict in favor of the party presenting the rebuttal evidence, the presumption disappears from the case and has no further function. In re Yoder Co., 758 F. 2d 1114, 1118-19 (6^th Cir. 1985), citing 1 Weinstein's Federal Evidence 2d § 301.02[2]. Nutro offers no disagreement with this statement of the law of presumptions.

Iams has presented substantial evidence, most of it drawn from deposition testimony of Nutro employees, to show that Nutro has not been actually damaged by the complained-of advertisements. Iams' evidence is more than adequate to overcome the presumption of actual injury. By admissions from Nutro's own witnesses, Iams has shown that Nutro's sales grew to new record highs every year from 1998 to 2002. (Motion, Doc. 207, at 8.) Its own witnesses admit that Nutro's share of the pet specialty market has grown while its competitors' market shares, including that of Iams, were flat or falling. Id. Nutro's employee witnesses were unable to identify any retailer who did not recommend Nutro products or any consumer who did not buy Nutro products because of Iams' feeding guidelines. Id. at 9-12. Nutro asserted that Iams' feeding guidelines had adversely affected its sales force and demonstrator program, but Iams has presented considerable evidence that Nutro's sales force does not compare their feeding guidelines with Iams' and that they are still using sales techniques they used before the feeding guideline change. Id. at 24-32. Iams' website feeding calculator does not mention Nutro and Nutro's website does not have a feeding calculator; this undermines the only evidence Nutro has available that a comparison of websites would cause a consumer to believe Iams was claiming to be less expensive than Nutro. Id. at 35. Nutro has no proof any consumer changed brands because of the point-of-sale materials (Plaintiff's Deposition Exhibits 73 and 74). Id. at 36-37. Finally, Iams incorporates its arguments that the testimony of Nutro's damages expert, James Langenfeld, and its survey expert, Gerald Ford, are inadmissible.

In opposition to the Motion, Nutro does not quarrel with Iams' analysis of the testimony of the Nutro witnesses insofar as actual injury is concerned. Rather, it relies on the proffered expert testimony of Dr. Langenfeld to show actual injury. In a separate decision, the Court has excluded Dr. Langenfeld's proposed testimony that Iams' allegedly false statements caused Nutro to lose sales and therefore profits. In the absence of Dr. Langenfeld's testimony, Nutro cannot establish actual injury because it cannot show that any customer switched from Nutro to Iams (or chose Iams over Nutro in the first instance) because of the allegedly false statements.

With respect to permanent injunctive relief, Nutro's case also fails as to the point-of-sale materials. Iams has produced testimony that it has long since ceased using those materials and therefore any permanent injunctive relief would be moot (Motion, Doc. No. 207, at 39). Nutro has not responded to suggest any way in which its claim for permanent injunctive relief as to the pointof-sale advertisements is not moot. Equity will not enjoin conduct which has been voluntarily terminated and where there is no threat of resumption. Kellogg v. Shoemaker, 46 F. 3d 503, 507 n. 3, citing Cotton v. Mansour, 863 F.2d 1241, 1244-45 (6th Cir. 1988), cert. denied, 493 U.S. 1042 (1990).

So far as the motion papers show, however, there has been no voluntary termination of the feeding guidelines and the Iams' website feeding calculator. Nutro's prayer for injunctive relief as to those allegedly false statements is therefore not moot.

In contrast to its claim for actual injury, Nutro has presented some admissible evidence to show that, at the time the new feeding guidelines were introduced, they were likely to injure Nutro. In 1999 Iams and Nutro were direct competitors in the pet specialty market; they remain direct competitors in that market, although Iams now also competes indirectly by selling through mass market channels as well. Also Iams' and Nutro's products are in close proximity to each other in pet specialty stores and would likely be substitutes for each other rather than complements or supplements. See Balance Dynamics, 204 F. 3d at 96-97. As Nutro notes in its Opposition (Doc. No. 242, pp. 4-6), Iams informed its sales representatives that the 33% reduction in recommended feeding levels equated to an improved value to the consumer. Indeed, Iams' senior vice president for sales and marketing testified that Iams has been trying to teach consumers to pay attention to feeding instructions for more than a decade and did not cease to do so when the feeding guidelines were reduced. The point-of-sale advertisements, particularly the "Guess Which One Costs Less" piece, are obviously intended to convey a price message and either encourage consumers to believe that Iams costs less or at least to prevent any sales erosion based on a consumer perception that Iams costs more. Such materials could readily have created a reasonable belief in Nutro that it would be harmed by the materials and Nutro has presented sufficient evidence to create a genuine issue of material fact as to whether Nutro in fact had such a belief. If Nutro had such a reasonable belief, then it would be entitled to recover its reasonable damage control costs in responding to the allegedly false Iams' statements.

At this point the Court has not decided either Iams' Motion in Limine with respect to Dr. Langenfeld's proposed testimony on damage control costs or Iams' Motion in Limine with respect to Dr. Ford's proposed testimony. Assuming for the sake of argument that those two sets of testimony will be admissible, they preclude summary judgment on Nutro's claim for recovery of damage control costs and its claim for permanent injunctive relief as to the feeding guidelines and website feeding calculator.

Nutro has presented no evidence whatsoever which would support a claim for loss of goodwill or disgorgement of profits by Iams.

Accordingly, the Motion of Plaintiff and Counter-Defendant The Iams Company and Counter-Defendant The Procter Gamble Company for Partial Summary Judgment on Nutro's Counterclaim Based on Lack of Injury is GRANTED insofar as Nutro seeks recovery for lost profits, lost goodwill, disgorgement of profits by Iams, or permanent injunctive relief regarding the point-ofsale advertisements and is otherwise DENIED.