United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 15, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 02-20559
_____________________
POROUS MEDIA LTD.,
Plaintiff - Counter Defendant - Appellant-Cross-Appellee,
versus
PERRY EQUIPMENT CORPORATION,
Defendant - Counter Claimant - Appellee-Cross-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. H-98-CV-3445
_________________________________________________________________
Before JOLLY, DUHÉ and STEWART, Circuit Judges.
PER CURIAM:*
For the following reasons we affirm the judgment of the
district court:
First, this Lanham Act case is an appeal from a jury verdict
that found against the plaintiff, Porous Media. Porous Media had
sought monetary damages, contending that the defendant, Perry
Equipment Corporation, made literally false statements about its
product. The issues presented in this case were classic issues for
a jury to decide and, in this case, the jury decided against the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
plaintiff. The evidence is plainly sufficient to sustain the jury
verdict.
Second, we conclude that the court committed no reversible
error in its instructions or in the verdict form. Neither the
theory of the case nor the evidence presented required a "tendency
to deceive" instruction, nor is Porous Media entitled to an
instruction that would allow the jury to presume injury.
Third, we cannot say that the district court abused its
discretion in refusing to admit the rebuttal evidence in the form
of a videotaped test performed by Porous Media purporting to use
Perry Equipment’s own test conditions.
In sum, a jury has spoken and the record is free of any
reversible procedural or other errors. Consequently, the judgment
of the district court dismissing the complaint, as well as the
counterclaims in this case, is
AFFIRMED.
2