              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                      ____________________

                     No. 90-5567 and 91-5510
                       ____________________


                     TEXAS PIG STANDS, INC.,

                                     Plaintiff-Appellant-
                                     Cross-Appellee,

                               v.

               HARD ROCK CAFE INTERNATIONAL, INC.,

                                     Defendant-Appellee-
                                     Cross-Appellant.

                     TEXAS PIG STANDS, INC.,

                                     Plaintiff-Appellee,

                               v.

                 HARD ROCK INTERNATIONAL, INC.,

                                     Defendant-Appellant.

                      ____________________

       Appeals from the United States District Court
             for the Western District of Texas
                    ____________________
   (Opinion Jan. 29, 1992, 5th Cir., 1992_____F.2d_____)

                         (July 9, 1992)


BEFORE BROWN, JOHNSON and BARKSDALE, Circuit Judges.

PER CURIAM:

               ON SUGGESTION FOR REHEARING EN BANC


     In the suggestion for rehearing en banc, Texas Pig Stands

contends that the Court's decision is inconsistent with and in
  conflict with this Court's earlier decision in Maltina Corp.

  v. Cawy Bottling Co., Inc., 613 F.2d 582 (5th Cir. 1980).

         Nothing in the Court's opinion affords any basis for this

  attack.    In the first place, the opinion does not slight the

  case since Maltina was cited twice.     See 951 F.2d at 695 and

  951 F.2d at 699.    This Court recognizes Maltina to be the law

  of the Fifth Circuit in its holding that (i) absence of

  competitors or (ii) failure of proof showing diversion of the

  mark owner's sales is no defense to the claim for Defendant's

  profits under 15 U.S.C. § 1117.

         The reason why Hard Rock Cafe's profits were not awarded

  was not based on (i) absence of competitors or (ii) no

  evidence of diversion; it was, rather, based solely on the

  lack of evidence showing that any of Defendant's profits were

  the result of its infringement of the mark.

         The trial court in granting j.n.o.v. on unjust enrichment

  expressly found:



              Hard Rock 'would have sold just as many
              pig sandwiches by any other name' and
              that 'there is no basis for inferring
              that any of the profits received by [Hard
              Rock] from the sale of pig sandwiches are
              attributable to infringment.'

  951 F.2d at 696.1




     1
       The trial court made specific findings to the effect that
"there was no proof as to the value of plaintiff's good will in
Dallas today." 951 F.2d at 696.

                                  2
         The overriding principle comes from the Supreme Court

  that as to recovery of infringer's profits:



              The plaintiff, of course, is not entitled
              to profits demonstrably not attributable
              to the unlawful use of his mark.
              Mishawaka Rubber & Woolen Mfg. Co. v. S.
              S. Kresge Co., 316 U.S. 203, 206, 62
              S.Ct. 1022, 1024, 86 L.Ed. at 1385
              (1941).



         Mishawaka has been followed and cited numerous times in

  many federal courts, including the Ninth Circuit in its

  decision in Maier Brewing Co. v. Fleischmann Distilling Corp.,

  390 F.2d 117 (9th Cir. 1968), adopted in Maltina.



              If it can be shown that the infringment
              had no relation to profits made by the
              defendant, that some purchasers bought
              goods bearing the infringing mark because
              of the defendant's recommendation or his
              reputation or for any reason other than a
              response to the difused appeal of the
              plaintiff's symbol, the burden of showing
              this is upon the poacher. The plaintiff,
              of course, is not entitled to profits
              demonstrably not attributable to the
              unlawful use of his mark.       (Emphasis
              added).

  Maier, 390 F.2d at 124 (quoting Mishawaka, 316 U.S. at 206, 62
  S.Ct. at 1024, 86 L.Ed. at 1385).2

         Treating the suggestion for rehearing en banc as a


     2
       See also Burndy Corp. v. Teledyne Indus., Inc., 748 F.2d
767, 772 (2d Cir. 1984); Comidas Exquisitos, Inc. v. Carlos
McGee's Mexican Cafe, Inc., 602 F.Supp. 191, 199 (S.D. Iowa),
aff'd, 775 F.2d 260 (8th Cir. 1985) and Alpo Petfoods, Inc. v.
Ralston Purina Co., 913 F.2d 958, 966 (D.C. Cir. 1990).

                                 3
petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED.     No member of the panel nor

Judge in regular active service of this Court having requested

that the Court be polled on rehearing en banc (Federal Rules

of Appellate Procedure and Local Rule 35), the suggestion for

Rehearing En Banc is DENIED.




                               4
JOHNSON, Circuit Judge, dissenting.

     Because the majority's opinion denying rehearing in no

way resolves the majority's central error, I continue to

disagree with the majority and respectfully dissent from the

denial of rehearing.

     In this writer's view, the central tenet of Maltina Corp.

v. Cawy Bottling Co., Inc., 613 F.2d 582 (5th Cir. 1980), is

that if the trademark laws are to effectively protect economic

property rights, violation of those laws must be rendered

unprofitable. In this case, as noted in the original dissent,

951 F.2d at 699, there were two avenues by which Hard Rock's

willful,      knowing,    and    deliberate     infringement   could    be

rendered unprofitable:            Texas Pig Stands might have been

awarded Hard Rock's profits, or Texas Pig Stands might have

been awarded its attorneys' fees.           While the majority has now

reinforced its blockading of one of these avenues (awarding

Hard Rock's profits to Texas Pig Stands), the majority has not

said anything further about the district court's award of

attorneys' fees to Texas Pig Stands, or why that award should

be reversed.       The entire burden of Hard Rock's willful,

knowing, and deliberate infringement continues to be borne

solely   by    Texas     Pig    Stands,   the   innocent   victim.     The

majority's resolution of this case thus remains irreconcilable

with the teaching of Maltina, and I must continue to dissent.




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