491 F2d 1391 Maltina Corporation v. Cawy Bottling Company Inc

491 F.2d 1391

MALTINA CORPORATION and Julio Blanco-Herrera, Plaintiffs-Appellees,
CAWY BOTTLING COMPANY, INC., Defendant-Appellant.

No. 73-2145.

United States Court of Appeals, Fifth Circuit.

April 4, 1974.

Appeal from the United States District Court for the Southern District of Florida; Charles B. Fulton, Chief Judge.

Peter M. Lopez, Miami, Fla., for defendant-appellant.

J. W. Gipple, Washington, D.C., Fowler, White, Humkey, Burnett, Hurley & Banick, Miami, Fla., for plaintiffs-appellees.

Before ALDRICH, Senior Circuit Judge,1 BELL and GEE, Circuit judges.



This is an appeal from the judgment for appellees entered by the district court after our decision on the prior appeal. Maltina Corporation v. Cawy Bottling Company, 5 Cir., 1972, 462 F.2d 1021. We are now presented with the tag end questions which were resolved by the district court following remand. We conclude that the trademark was not assigned in gross; that the trademark was not abandoned by non-use or otherwise; and that the district court did not err in concluding that there was an inadequate basis for cancelling the trademark because of the affidavit of use filed pursuant to 15 U.S.C.A. 1058(a).




Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation