No attribution, no disgorgement

Illinois Tool Works proved at trial that Rust-Oleum engaged in false advertising about the parties’ competing water-repellent products. The Fifth Circuit reversed the judgment as to disgorgement (among other matters), reasoning:

“Illinois Tool Works failed to present sufficient evidence of attribution. It cites nothing that links Rust-Oleum’s false advertising to its profits, that permits a reasonable inference that the false advertising generated profits, or that shows that even a single consumer purchased RainBrella because of the false advertising. 

Illinois Tool Works argues, however, that three things show that RustOleum benefitted from its false advertising: witnesses testified about how important the advertising claims were to Rust-Oleum, tens of thousands of people saw the commercial, and RainBrella was placed on nearby shelves in the same stores as Rain-X. None of this shows attribution.” Illinois Tool Works v. Rust-Oleum, No. 19-20210 (April 9, 2020).