                                                       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this opinion should not be published and is not precedent except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.




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