                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No. 98-20420

                       THE COCA-COLA COMPANY,

                         Plaintiff - Counter Defendant - Appellee,

                               VERSUS

                    BOSTON’S BAR SUPPLY, ET AL.

                                                        Defendants,

    NEVER SAY DIE, doing business as Bar Supplies Unlimited,

                                            Defendant - Appellant,

               BOSTON’S BAR SUPPLY; DONALD MANSFIELD,

                      Defendants - Counter Claimants - Appellants.


           Appeals from the United States District Court
                 for the Southern District of Texas
                           (H-94-CV-3266)


                           JULY 22, 1999
Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     The appellants-defendants, Boston’s Bar Supply, Never Say Die,

Inc., and Donald Mansfield, appeal the district court’s judgment in

favor of plaintiff-appellee, The Coca-Cola Company (“Coca Cola”),

on Coca-Cola’s claims for trademark infringement and injunctive

relief.   Having reviewed the briefs, heard the parties’ arguments,



     *
      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this opinion should not be published and is not precedent except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.
and considered relevant portions of the record, we affirm the

district court.

                                         I.

       Donald Mansfield began operating a bar and equipment supply

company, Boston’s Bar Supply (“Boston’s”), in Houston, Texas in

1987.       Boston’s was a full service supplier that provided all

supplies and equipment necessary for running a tavern or bar,

including     mixes,    juices,    and    sodas.       In    the    course    of   its

operations, Boston’s opened an account with Houston’s Coca-Cola

Bottling Company to distribute all Coca-Cola products except Coca-

Cola fountain syrup.          To satisfy those customers who needed Coca-

Cola    fountain     syrup,    Boston’s       purchased     the    syrup    from   two

distributors, Sysco Food Services of Houston, Inc. (“Sysco”) and

White Swan, Inc.

       In 1988, Boston’s applied to Coca-Cola to become an authorized

distributor of Coca-Cola products, including Coca-Cola fountain

syrup.      After inspecting Boston’s premises Coca-Cola denied the

application.     Boston’s, however, continued to supply its customers

with Coca-Cola fountain syrup it bought from Sysco and White Swan.

In 1991, Boston’s again applied for authorization to distribute

Coca-Cola fountain syrup.          Coca-Cola again denied the request.

       In    1993,    Coca-Cola     demanded      that      Boston’s       cease   the

unauthorized distribution of its fountain syrup.                    In 1994, Coca-

Cola repeated that demand and filed suit against Boston’s in

district court alleging, among other things, federal trademark

violations.          Coca-Cola    then   filed     a   motion      for   preliminary


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injunction.     The district court, while denying the request for

preliminary injunctive relief, concluded that Coca-Cola would be

entitled to permanent injunctive relief unless Boston’s could

successfully prove its defense that Coca-Cola had acquiesced to

Boston’s use of the Coca-Cola fountain syrup.                   After granting

summary    judgment    against      various     counterclaims        asserted     by

Boston’s, the district court commenced a non-jury trial on Boston’s

affirmative defense of acquiescence.            After Boston’s presented its

evidence and rested its case, the district court granted Coca-

Cola’s motion for judgment as a matter of law.               The district court

then entered a permanent injunction against Boston’s use of Coca-

Cola fountain syrup.     Boston’s then appealed.

      In an unpublished per curiam opinion, this Court reversed the

district court’s ruling.         The Coca-Cola Company v. Boston’s Bar

Supply, No. 96-21162 (August 12, 1997).               Although affirming the

district court on other issues, we found that the district court

had   applied   the   wrong   standard      for   deciding     the    defense    of

acquiescence.    Specifically, the district court applied an active

standard   developed    by    the   Eleventh      Circuit,    see    Coach   House

Restaurant v. Coach & Six Restaurants, 934 F.2d 1551 (11th Cir.

1991) (defining acquiescence as an active representation), instead

of the more passive standard utilized by the Fifth Circuit.                     That

standard   defines     acquiescence        as   any   implicit       or   explicit

assurances which induce reliance, Conan Properties, Inc. v. Conans

Pizza, Inc., 752 F.2d 145, 153 (5th Cir. 1985).                Accordingly, we

vacated the district court’s judgment and remanded the action to


                                       3
allow the court to reconsider the facts under the appropriate

standard.

     In June 1996, while that appeal was pending, Coca-Cola filed

a motion with the district court to add Never Say Die, Inc., as a

party defendant pursuant to Rule 25(c) of the Federal Rules of

Civil Procedure.   See Fed. R. Civ. P. 25(c).    Coca-Cola filed the

motion because Boston’s had transferred all of its assets to Never

Say Die,2 and Coca-Cola suspected that the transaction was a

fraudulent attempt to dodge creditors.   On April 21, 1997, before

the district court could rule on the motion, Never Say Die filed

for bankruptcy.    On April 30, 1997, unaware of the bankruptcy

filing, the district court added Never Say Die as a defendant.    On

November 12, 1997, the bankruptcy court dismissed Never Say Die’s

bankruptcy petition with prejudice.

     On remand, the district court held a hearing and ordered the

parties to file “motions for judgment” accompanied by supplemental

briefing. On April 7, 1998, the district court granted judgment in

favor of Coca-Cola, finding that the facts of the case did not

support the defendants’ acquiescence defense under Conan.        The

district court then entered final judgment, and reinstituted its

permanent injunction in favor of Coca-Cola.     Boston’s Bar Supply,

Never Say Die, Inc., and Donald Mansfield filed the instant appeal

(“appellants”).




    2
       Never Say Die, which was formed on the eve of the transfer,
was owned by Janice Mansfield, the wife of Donald Mansfield.

                                 4
                                 II.

     We review the district court’s decision to grant judgment as

a matter of law de novo, applying the same legal standards as the

district court.     Omnitech Int’l Inc. v. Clorox Co., 11 F.3d 1316,

1322-23 (5th Cir. 1994).     Judgment as a matter of law is proper

after a party has been fully heard on a given issue and “there is

no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue."      Fed. R. Civ. P. 50(a).    In

evaluating the motion for judgment as a matter of law, the court

must consider all of the evidence in the light most favorable to

the nonmovant, drawing all factual inferences in favor of the

non-moving party.    Nero v. Industrial Molding Corp., 167 F.3d 921,

925 (5th Cir. 1999).

                                 III.

     The appellants’ contentions can be grouped into three separate

categories.   First, the appellants assert that the district court

erred by applying federal trademark law to this action.           This

claim, however, was expressly raised in the prior appeal and

squarely rejected by this Court. Boston’s Bar Supply, No. 96-21162

at 2-3.   Accordingly, under the law of the case doctrine we need

not reconsider the argument as there is no indication that (1)

evidence at a subsequent trial was substantially different, (2)

controlling authority has since made a contrary decision of law

applicable, and (3) the decision was clearly erroneous and a

manifest injustice.     White v. Murtha, 377 F.2d 428, 431-32 (5th

Cir. 1967).


                                  5
     Second, the appellants maintain that the district court erred

in finding that Coca-Cola did not acquiesce to Boston’s use of its

fountain syrup. In order to establish the defense of acquiescence,

a defendant must prove that:    (1) the plaintiff knew or should have

known of the defendant’s use of the trademark; (2) the plaintiff

made implicit or explicit assurances to the defendant; and (3) the

defendant relied on the assurances.        Conan, 752 F.2d at 152 n.3.

We have reviewed the relevant portions of the record and find no

reversible error in the district court’s determination.

     Finally, the appellants insist that the district court erred

by adding Never Say Die as a party defendant when it had filed for

bankruptcy   and   triggered   the    automatic   stay.   However,   the

appellants have not cited even a single case for the proposition

that a bankruptcy stay voids a subsequent joinder.        In the absence

of such authority, we decline to accept that argument.



                                     IV.

     For the foregoing reasons we affirm the district courts

judgment.




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