                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 02-2431 & 02-2574
GEORGE ZELINSKI, JR. and PIN BREAKER, INC.,
an Illinois corporation,
                                         Plaintiffs-Appellees,
                                           Cross-Appellants,
                              v.


COLUMBIA 300, INC., a Texas corporation,
                                        Defendant-Appellant,
                                             Cross-Appellee.
                        ____________
          Appeals from the United States District Court
                for the Central District of Illinois.
        No. 98 CV 1059—Joe Billy McDade, Chief Judge.
                        ____________
   ARGUED FEBRUARY 24, 2003—DECIDED JULY 10, 2003
                   ____________


  Before BAUER, RIPPLE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Columbia 300 sold bowling balls
and manufactured boxes under the federally registered
mark “Pin Breaker”—without the written permission of
George Zelinski, Jr., the owner of the mark. Zelinski
and Pin Breaker, Inc. (which Zelinski co-owns with his
father) sued Columbia and won actual and punitive dam-
ages. The parties filed post-trial motions and, while Colum-
bia still lost the war, it won a major battle when the dis-
2                                    Nos. 02-2431 & 02-2574

trict court vacated the punitive damages award. Both
parties appeal.
  In 1990 Zelinski and his father founded Pin Breaker,
Inc., a small company that manufactured and sold high-
end bowling balls. For 6 years, Zelinski and Pin Breaker,
Inc. (we’ll refer to both as “Zelinski”) sold Pin Breaker
balls domestically and internationally. In 1996 another
corporation made Zelinski a lucrative offer for his man-
ufacturing equipment. The offer came at a good time
because Joseph Gentiluomo had recently sued Pin
Breaker in an industry-wide patent infringement law-
suit.1 Zelinski wanted to stop manufacturing balls dur-
ing the pendency of the suit, so he accepted the offer.
  Despite selling his manufacturing equipment, Zelinski
didn’t exit the bowling ball industry entirely. While talk-
ing to people at Columbia 300 about defense efforts in
the Gentiluomo lawsuit, Zelinski began discussing Pin
Breaker’s ball technology and whether Columbia might
be interested in producing Pin Breaker balls. Negotiations
continued during an in-person meeting in October 1996.
The parties signed a confidentiality agreement and Zelin-
ski gave Columbia samples of his ball chemistry to test.
Zelinski also showed Columbia an invoice from B.S. Hong,
Pin Breaker’s distributor in Korea, requesting a certain
number of balls in specific types and colors. Although the
parties discussed possible royalty arrangements, the
meeting concluded without a written agreement, and
talks continued in the following months. In March 1997,
at Columbia’s request, Zelinski sent it sample Pin Break-
er boxes. Still, no written agreement was reached. Zelinski
proceeded to discuss producing Pin Breaker balls with
two other bowling ball companies.


1
  As of 2002, some remnants of this litigation were still ongo-
ing. See Gentiluomo v. Brunswick Bowling and Billiards Corp.,
36 Fed. Appx. 433, 2002 WL 1216621 (Fed. Cir. 2002).
Nos. 02-2431 & 02-2574                                  3

  Time passed, and in January 1998, Zelinski was at a
bowling pro-shop and discovered a Pin Breaker box that
he didn’t recognize. The design of the Pin Breaker logo
was different, the logo’s ® had been changed to a ™, and
the identifying information, warranties, and certifica-
tion from the American Bowling Congress and Women’s
International Bowling Congress had been eliminated. To
add insult to injury, the ball in the box was a low-qual-
ity Columbia second, the “Bonanza.”
  Zelinski investigated and found out that Columbia
was behind the Pin Breaker box and had proceeded full
steam ahead with producing balls under the Pin Breaker
name. Following the October 1996 meeting, Columbia
talked to Hong and Myung Kwon, Pin Breaker’s over-
seas shipping agent, and they decided to add names
and colors to Pin Breaker balls. In addition to implement-
ing changes to the appearance of the Pin Breaker balls,
Columbia also changed the quality of the balls. Unlike
the high-end balls that Zelinski had produced, Columbia
used less expensive cores and created cheap plastic balls
or shoddy mid-level balls prone to cracking. Columbia
sold 2,580 of these balls to Hong for South Korean dis-
tribution and 496 to the Asia Merchandise Company for
distribution in Taiwan.
  Columbia also created generic Pin Breaker boxes for the
balls. As Zelinski had discovered, Columbia used some
of the leftover boxes to ship its own Bonanza balls. Al-
though Columbia put Bonanza stickers on the Pin Breaker
boxes, the stickers did not cover up the Pin Breaker
mark. Columbia didn’t tell Zelinski about any of the
meetings it had with Hong and Kwon or the changes it
had made to the Pin Breaker balls and boxes. In fact,
during a customs snafu, Columbia even told Kwon not
to contact Zelinski because it was in charge of the Pin
Breaker line.
4                                  Nos. 02-2431 & 02-2574

  Around the time of Zelinski’s investigation, Columbia
learned that it had failed to pay him any royalties. Al-
though Columbia offered to send Zelinski a check, he
refused to accept the payment. Zelinski did ask Columbia
to destroy its leftover Pin Breaker boxes. Although Colum-
bia promised to do so, Zelinski found a stash of Pin Break-
er boxes in Columbia’s warehouse during discovery for
this suit—2 years later.
  Zelinski filed suit in the Central District of Illinois,
asserting federal claims of trademark infringement and
unfair competition under the Lanham Act, 15 U.S.C.
§ 1114(1) and § 1125(a), state law claims under the Illi-
nois Uniform Deceptive Trade Practices Act, 815 ILCS
510/1 et seq., and the Illinois Consumer Fraud Act, 815
ILCS 505/2 et seq., and a common law claim of unfair
competition. Prior to trial, Chief Judge Joe Billy McDade
partially granted Zelinski’s motion for summary judg-
ment, subject to Columbia’s success at trial on its affirma-
tive defenses and a factual finding whether a contract
existed between the parties. During trial, Columbia moved
for a directed verdict on its abandonment affirmative
defense and to exclude punitive damages and damages
based on corrective advertising. The district court denied
these motions and the jury found in favor of Zelinski,
awarding him $70,000 in actual damages for corrective
advertising and lost royalties and $710,000 in punitive
damages.
  After trial, Columbia made a renewed motion for judg-
ment as a matter of law and Zelinski moved to alter or
amend the judgment. Columbia had only one victory, but
it was a big one—the district court eliminated the puni-
tive damages award. Zelinski’s motion sought various
forms of injunctive relief, such as preventing Columbia
from using the Pin Breaker mark and destroying any-
thing that bore the mark, which Columbia did not op-
pose. He also requested treble his actual damages, attor-
Nos. 02-2431 & 02-2574                                     5

neys fees, costs in bringing the action, and pre-judgment
interest. The district court granted Zelinski costs and pre-
judgment interest but denied the remainder of his motion.
  Both parties appeal the district court’s decision on their
motions. We’ll start with the decision partially granting
Columbia’s renewed motion for judgment as a matter
of law, which we review de novo. See Massey v. Blue
Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir. 2000).
The parties’ arguments primarily focus on the jury’s
findings. When reviewing a jury verdict, “the question is
not whether the jury believed the right people, but
only whether it was presented with a legally sufficient
amount of evidence from which it could reasonably derive
its verdict.” See id. Overturning a jury verdict is a “hard
row to hoe.” Sheehan v. Donlen Corp., 173 F.3d 1039, 1043
(7th Cir. 1999).
  Because Columbia’s affirmative defenses are potentially
dispositive of this case, we’ll start there. Columbia argues
that the jury wrongly rejected its acquiescence and aban-
donment defenses. We can make short work of the acquies-
cence defense because Columbia failed to move for a
directed verdict on that issue. As the district court pointed
out during its review of Columbia’s post-trial motion, that
is a prerequisite to judgment as a matter of law. See
McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1555-56
(7th Cir. 1987) (citing Fed. R. Civ. P. 50(b)). Columbia
does not address this problem. We’ve examined the rec-
ord ourselves and can’t find any sign that Columbia made
an oral or written motion regarding acquiescence. Under
these circumstances, Columbia has waived review of
this issue.
  Columbia did preserve review of its abandonment de-
fense. Under 15 U.S.C. §1127, Columbia had a presump-
tion of abandonment because Zelinski let his mark lie
dormant for three consecutive years. Zelinski can rebut
6                                   Nos. 02-2431 & 02-2574

this presumption with “evidence explaining the nonuse
or demonstrating the lack of an intent not to resume use.”
Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d
947, 955 (7th Cir. 1992). Zelinski’s mere statement that
he didn’t abandon his mark is insufficient. See Imperial
Tobacco Ltd., Assignee of Imperial Group PLC v. Philip
Morris, Inc., 899 F.2d 1575, 1581 (Fed. Cir. 1990) (“In every
contested abandonment case, the respondent denies
an intention to abandon its mark; otherwise there would
be no contest.”).
  Zelinski had more than his own say-so to rebut Colum-
bia’s presumption of abandonment. Specifically, he relies
on the Gentiluomo lawsuit. While Zelinski did testify that
he thought the lawsuit was frivolous and fraudulent, the
jury could still have reasonably found that he was con-
cerned about it having a significant financial impact on
his business. This is particularly true when the jury
was aware that the suit had enough substance that it
was still lingering on at the time this case was tried.
Although the Gentiluomo suit didn’t stop Columbia
from making bowling balls, a jury could conclude that a
small company might be more cautious than Columbia, one
of the world’s largest bowling ball producers. In addition
to explaining his non-use, Zelinski demonstrated that
he intended to resume using the Pin Breaker mark. Start-
ing in 1997, Zelinski discussed producing Pin Breaker
balls with two other bowling ball companies. So, while
Columbia does have some evidence to support its aban-
donment theory, the evidence the jury heard was not
so one-sided that the only conclusion it could have
reached was that Zelinski abandoned his mark. The jury
had a reasonable basis to reject Columbia’s abandonment
defense.
  Although Columbia’s affirmative defense arguments
haven’t gone anywhere, it has another weapon in its
arsenal. Columbia argues that Zelinski isn’t entitled to
Nos. 02-2431 & 02-2574                                    7

the monetary damages he received for corrective advertis-
ing and lost royalties. To recover damages, Zelinski
must show that the violation caused actual confusion
among his customers and, as a result, he suffered actual
injury. See Web Printing Controls Co. v. Oxy-Dry Corp.,
906 F.2d 1202, 1205 (7th Cir. 1990). Columbia finds
Zelinski’s evidence of actual confusion and actual injury
lacking and also questions the quality of his expert testi-
mony.
  Zelinski’s testimony of actual confusion is not overwhelm-
ing (two people saw Columbia balls in Pin Breaker
boxes and were possibly confused about Pin Breaker’s
relationship with Columbia). But under the circum-
stances of this case, it is sufficient. Columbia sold balls
labeled Pin Breaker in Pin Breaker boxes. Columbia
wasn’t mentioned anywhere on the box. Why would a
customer think he purchased anything other than a Pin
Breaker ball? Columbia argues that Zelinski was not
manufacturing or selling new balls when it sold balls
under the Pin Breaker label. There is no reason, how-
ever, the average customer would have been aware of
this fact. The jury is entitled to use its common sense
to reason that purchasers of Columbia’s Pin Breaker
balls were deceived. This is particularly the case when
no amount of inspection would have revealed that Colum-
bia—not Pin Breaker—manufactured the balls. See Getty
Petroleum Corp. v. Island Transp. Corp., 878 F.2d 650, 656
(2nd Cir. 1989) (proof of actual confusion unnecessary
when non-Getty gasoline was sold to consumers under
the Getty trademark and purchasers had no way of learn-
ing it was not Getty gasoline).
  Columbia’s next argument is that Zelinski hasn’t suf-
fered an actual injury because he isn’t producing any-
thing now and wasn’t producing anything at the time of
Columbia’s infringement. At trial, Zelinski argued that he
was injured because he lost royalties and will have to spend
8                                 Nos. 02-2431 & 02-2574

money on corrective advertising. Lost royalties aren’t
dependent on Zelinski’s current production status. Correc-
tive advertising to rehabilitate an unused mark may seem
unnecessary, but Zelinski intends to resume use of his
mark. The jury could reasonably find that Zelinski was
actually injured.
  Columbia’s last shot at the damages issue takes aim
at the testimony of J. Timothy Cromley, Zelinski’s dam-
ages expert. Columbia contends that the district court
should not have admitted his testimony—a decision we
review only for abuse of discretion. See Bourelle v. Crown
Equip. Corp., 220 F.3d 532, 535 (7th Cir. 2000) (citing
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), requires judges to determine that scientific
testimony offered under Federal Rule of Evidence 702 is
both relevant and reliable, 509 U.S. at 589, an inquiry
required also for technical and other specialized expert
testimony, Kumho Tire Co., Ltd., 526 U.S. at 149. To
gauge reliability, the district judge must determine wheth-
er the expert is qualified in the relevant field and wheth-
er the methodology underlying the expert’s conclusions
is reliable. See Smith v. Ford Motor Co., 215 F.3d 713,
718 (7th Cir. 2000).
  The relevance of Cromley’s testimony and his qualifica-
tions are not in dispute. Columbia only quibbles with
three aspects of his methodology. First, Cromley conceded
that the cost of corrective advertising would be the same
no matter how many bowling balls Columbia sold under
the Pin Breaker name in Korea. This is correct. The num-
ber of infringing balls sold effects the reasonableness of
an expansive corrective advertising campaign, but it
doesn’t effect the costs of running rehabilitative ads in
trade magazines. In this case, it wasn’t unreasonable for
Cromley to recommend a corrective advertising cam-
Nos. 02-2431 & 02-2574                                      9

paign when Columbia sold slightly over 3,000 balls in Korea
and Taiwan.
   Columbia’s second beef is with the way Cromley tested
the reasonableness of repairing Zelinski’s mark. To jus-
tify damages for corrective advertising, Zelinski had to
show that “repair” of the old trademark, rather than
adoption of a new one, is the least expensive way to pro-
ceed. See Zazu Designs v. L’Oreal, S.A., 979 F.2d 499, 506
(7th Cir. 1992). After Cromley determined how much it
would take to rehabilitate Zelinski’s mark, he compared
that number with Pin Breaker’s projected income for the
next 20 years—which included years that the com-
pany wasn’t in business. That does seem a little odd, but
Cromley knew that Zelinski had closed his plant, and he
still opined that this was an accepted way to confirm the
reasonableness of repair. Cromley fully explained his
methodology, and Columbia didn’t present evidence that
would suggest an expert wouldn’t use this technique.
  Columbia’s final complaint focuses on Cromley’s lost
royalties testimony. Columbia had different royalty rates
for balls it produced, depending on the type of ball. Al-
though Columbia mainly sold balls with the cheaper
royalty rates, Cromley used the royalty rate for the most
expensive ball to determine Zelinski’s lost royalties.
Columbia failed to dispute Cromley’s royalties calcula-
tion before the district court. To the extent that this
issue might be included in Columbia’s general challenge
to Cromley’s testimony, Zelinski would have tried to get
the best rate possible, so it is not beyond reason for Cromley
to rely on that rate in his calculations. This does not
show that Cromley’s testimony is inherently unreliable.
  To sum up, the district court did not abuse its dis-
cretion admitting Cromley’s testimony based on any of
Columbia’s asserted reasons. Columbia makes a passing
reference in its brief to whether Cromley’s testimony
10                                Nos. 02-2431 & 02-2574

was sufficient to support the jury’s verdict. This argument
was not before the district court or fleshed out at all in
Columbia’s analysis, so we aren’t exactly sure what ad-
ditional evidence Columbia thinks the jury needed. For
what it’s worth, we find Cromley’s testimony sufficient
for a jury to reasonably determine that corrective adver-
tising was reasonable and worth doing, and the amount
of lost royalties.
  Although we are done with Columbia’s damages argu-
ments, we’re not quite ready to leave the subject. Zelinski
contends that the district court wrongly vacated the jury’s
punitive damages award. The district court found that
Columbia had “some reasonable basis for believing that
it had an agreement” to fill orders in Korea and, in that
case, “there is no evidence sufficient to show that [Colum-
bia’s] conduct was willful or grossly negligent as to indi-
cate a wanton disregard of the rights of others.” While
overturning a jury verdict is not something that district
courts do with regularity, we agree with Judge McDade
here that the evidence in this case did not support puni-
tive damages.
   Under Illinois law, punitive damages are disfavored. See
Smith v. Prime Cable of Chicago, 658 N.E.2d 1325, 1336
(Ill. App. 1995). They are only recoverable “where the
alleged misconduct is outrageous either because the acts
are done with malice or an evil motive or because they
are performed with a reckless indifference toward the
rights of others.” Id. Ordinary negligence will not support
an award of punitive damages, therefore Zelinski must
prove more than “mere inadvertence, mistake, errors of
judgment and the like.” Loitz v. Remington Arms Co., 563
N.E.2d 397, 402 (Ill. 1990). The focus of our inquiry is
on Columbia’s conduct. Zelinski must show that Colum-
bia exhibited a conscious and deliberate disregard for
the rights of others. See Burke v. 12 Rothschild’s Liquor
Mart, Inc., 593 N.E.2d 522, 531 (Ill. 1992).
Nos. 02-2431 & 02-2574                                   11

  Judge McDade concluded that Zelinski didn’t make
this showing because Columbia reasonably believed it had
an oral agreement to sell Pin Breaker balls in Korea.
George Zelinski, Sr. apparently started this misunder-
standing when he met Columbia’s president at a trade
show and introduced him to Hong and Kwon. Zelinski, Sr.
then brought up the possibility of making low-end balls
for the Korean market. When Zelinski met with Columbia
representatives in October 1996, he brought along an
invoice from Hong requesting specific quantities and
styles of bowling balls. The parties discussed the fact that
Columbia could produce the balls and the amount of
royalties it might pay. Zelinski gave Columbia Hong’s
contact information and, according to Columbia, told it
to contact Hong regarding Pin Breaker orders. Columbia
contacted Hong and produced the balls that he sought.
During this time, Columbia requested sample boxes
from Zelinski so that it could create its own boxes for
the balls. He provided the boxes—without questioning
why Columbia would need them.
  Zelinski argues that the district court ignored much of
the evidence in his favor. We have looked at this evi-
dence, however, and we still reach the same conclusion
as the district court. First, we are concerned with Colum-
bia’s state of mind, so testimony regarding how Zelinski
operated or what he thought is irrelevant. Second, much
of Zelinski’s evidence shows that Columbia’s representa-
tives were negligent, not that they had a conscious and
deliberate disregard for the rights of others. For ex-
ample, Kyle Burns, director of International Sales, and
Brad Hunt, director of Research and Development, both
testified that they thought a deal to sell balls in Korea
had been struck but that the other person would handle
any necessary contracts—so neither of them ended up
doing anything. Another example of this is that Columbia
made sweeping changes to Zelinski’s balls and produced
12                                Nos. 02-2431 & 02-2574

generic Pin Breaker boxes without telling him. Columbia
probably made an error in judgment by not maintain-
ing closer communication with Zelinski. Its actions are
consistent, however, with Columbia’s position that it had
the green light to fill Hong’s orders—and produce balls
that met his specifications. Negligence also explains the
timing of Columbia’s offer to pay royalties. While this
occurred as Zelinski was investigating Columbia’s ac-
tions, there is no indication that Columbia knew of the
investigation and decided to try to pay royalties in an
effort to hide its misdeeds. Rather, an email from Burns
to Hunt shows that the royalty payment is something
else that simply fell between the cracks. Finally, Colum-
bia showed that some of Zelinski’s complaints are just
about its normal business practices. Although Zelinski
contends that using the leftover Pin Breaker boxes for
shipping Columbia seconds shows malice, no one disputed
that Columbia normally uses leftover boxes for shipping
its balls. Furthermore, Columbia attempted to cover up
the Pin Breaker name with labels for its ball—it didn’t
represent that these seconds were Pin Breaker products.
After culling through Zelinski’s evidence, Columbia’s
most inexplicable actions are why it made such sweeping
changes to the appearance of the boxes and why, after
Zelinski asked, it didn’t destroy the remaining boxes.
Neither of these facts, however, rise above negligence
to show malice or an intent to deceive. See Martin v.
Heinold Commodities, Inc., 643 N.E.2d 734, 756-57 (Ill.
1994) (punitive damages warranted when broker dis-
guised commission as “foreign service fee,” act was inten-
tional deception that involved an element of outrage
similar to that usually found in crime). We agree with
the district court: Zelinski did not put forth sufficient
evidence to recover punitive damages.
  We can quickly deal with the parties’ two remaining
issues. Zelinski thinks the district court should have
Nos. 02-2431 & 02-2574                                     13

granted his motion to alter or amend the judgment and
awarded him treble damages and attorneys fees. We re-
view the district court’s decision for abuse of discretion.
See Zivitz v. Greenberg, 279 F.3d 536, 539 (7th Cir. 2002).
Under the Lanham Act, 15 U.S.C. § 1117(b), treble dam-
ages and attorneys fees must be awarded if an infring-
er’s violation “consists of intentionally using a mark or
designation, knowing such mark or designation is a coun-
terfeit mark,” unless there are “extenuating circumstances.”
As we have discussed, the evidence does not support
a finding that Columbia intentionally used a mark that
it knew to be counterfeit. Rather, the evidence indicates
that Columbia negligently infringed on Zelinski’s mark
because its representatives believed an oral agreement
allowed it to fill orders on Zelinski’s behalf. Denying treble
damages and attorneys fees was not an abuse of discretion.
   Finally, Columbia complains that the district court
should have granted its forum non conveniens motion,
mainly because it has a similar case pending in Texas state
court. This decision is also reviewed for abuse of discre-
tion. See Wilson v. Humphreys (Cayman) Ltd., 916 F.2d
1239, 1245 (7th Cir. 1990). A forum non conveniens analy-
sis takes place in two steps. First, the court must deter-
mine whether an adequate alternative forum is available;
second, it must weigh several private and public interest
factors related to the proper location for the litigation.
See Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 718 (7th Cir.
2002). There is a strong presumption in favor of the plain-
tiff’s choice of forum. See Wilson, 916 F.2d at 1245. While
Columbia can show that an adequate alternative forum
is available in Texas state court, none of its arguments
on the private and public interest factors overcome the
presumption in favor of Zelinski. The fact that the dis-
trict court tried this case to a conclusion indicates that
Zelinski’s forum of choice was, if not convenient for Colum-
bia, at least workable. Furthermore, at this point the pub-
14                                 Nos. 02-2431 & 02-2574

lic interest certainly would not be well-served by deciding
to jettison the untold hours of work put into this case
by Chief Judge McDade and his staff, Magistrate Judge
Bryon G. Cudmore and his staff, the clerk’s office of the
Central District of Illinois, the citizens who served as
jurors, and everyone else who got this case through trial.
See McLennan v. American Eurocopter Corp., Inc., 245 F.3d
403, 423-24 (5th Cir. 2001) (moving party must demon-
strate great prejudice to get case dismissed post-trial).
Columbia’s best argument at the time it filed its motion
was that its sister entity, Columbia Industries, Inc., filed
a breach of contract action against Zelinski based on
the same facts underlying this case in Texas state court,
and it would be efficient to resolve all of the claims at
one time and in one court. Although the state court ac-
tion was filed in March 2001, Columbia did not file its
forum non conveniens motion until August 2001. At that
time, trial was scheduled less than a month away. The
district court did not abuse its discretion in denying the
motion.
  For the above reasons, the decision of the district court
is AFFIRMED.




  RIPPLE, Circuit Judge, concurring in part and dissenting
in part. I respectfully part company with my colleagues
on the issue of punitive damages. In my view, the evi-
dence permitted the jury to reach the decision that it
reached. Columbia was, according to the evidence, either
very negligent for a company of its size and sophistica-
tion or it attempted to steal Pin Breaker’s business in a
calculated fashion that clearly warrants punitive dam-
Nos. 02-2431 & 02-2574                                   15

ages. The jury heard the evidence and decided that puni-
tive damages were warranted. I would not second guess
that determination.
  In all other respects, I am pleased to join my colleagues’
excellent opinion.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-10-03
