Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc.

ARCHER, Circuit Judge,

concurring in result.

Section 45 of the Lanham Act provides, inter alia, that “non-use for two consecutive years shall be prima facie abandonment.” 15 U.S.C. § 1127 (1988). The Board found such non-use by Centroameri-cana of its trademark “MEDALLA DE ORO” for more than two consecutive years and, as the majority correctly concludes, that factual finding is not clearly erroneous.

The only evidence * indicating that Cen-troamericana did not abandon its trademark is Mr. Castillo’s “vague” testimony, which was not given credence by the Board and which it indicated was contradicted by other testimony. As we have stated on numerous occasions, credibility determinations made by the trier of fact are “virtually unreviewable” in this court. See Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). Nothing in this case counsels that we disturb the Board’s weighing of Mr. Castillo’s testimony.

Accordingly, the Board did not err in holding that Centroamericana had abandoned its trademark “MEDALLA DE ORO.”

Centroamericana’s evidence that it began to use its mark again in 1984 after the mark had already been abandoned is, as the majority opinion points out, irrelevant to the issue of whether it earlier had abandoned its mark. Mission Dry Corp. v. Seven-Up Co., 193 F.2d 201, 203, 92 USPQ 144, 146 (CCPA 1951).