Summary
In Serbin, the former Fifth Circuit did nothing more than remand a case to the district court for a determination of fees on appeal. That we eschewed this procedure in the instant case and summarily denied Towel King's motion for appellate fees can in no way be taken as an expression of our opinion on the merits of Towel King's claim for fees at the trial level.
Summary of this case from Sherry Mfg. Co. v. Towel King of FloridaOpinion
No. 24067.
August 14, 1967.
Eugene C. Heiman, Miami, Fla., for appellant.
James Guilmartin, Stanley Jay Bartel, Miami, Fla., for appellee.
Before BROWN, Chief Judge, SIMPSON, Circuit Judge, and SUTTLE, District Judge.
Serbin, Inc. (Serbin), defendant in the District Court, appeals from a final judgment in favor of Key West Hand Print Fabrics, Inc. (Key West) finding infringement of two copyrights, No. K67524 ("Zuzek Rose Butter") and No. K66990 ("Dragon"). On appeal Serbin has raised points directed only to matters affecting liability. No question is raised as to the District Court's award of statutory damages of $5,000 on each of the two counts, and of attorneys' fees of $10,000.
Title 17, U.S.C. § 101(b).
Title 17, U.S.C. § 116.
Key West cross-appeals from the dismissal by the District Court, without prejudice, of a claim involving a third copyright K67222 ("Bougainvilla") for lack of an indispensable party plaintiff, one Charles Cervantes, in whose name the copyright was jointly registered. Key West does not question here the correctness of the District Court's dismissal, for failure of proof, of its claim involving unfair competition.
Title 28, U.S.C. § 1338(b).
The District Court's opinion is reported in 269 F. Supp. 605. For the reasons carefully reviewed and enunciated there, requiring no elaboration by us, we affirm both as to the original appeal and the cross-appeal. As to the District Court's disposition of other matters (supra) not raised on either appeal or cross-appeal here, we of course express no views.
Key West applies for the allowance under the statute of additional attorneys' fees as a part of the costs for this appeal. The statute contemplates such fees. We deem it proper that such allowance be considered by the District Court rather than this court, and direct that that court consider an application therefor by Key West upon the going down of our mandate. D/S Ove Skou v. Hebert, 365 F.2d 341 (5 Cir. 1966) at 353.
Affirmed, with directions.