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United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_____________________
No. 03-30470
_____________________
BRENNAN'S INC; OWEN E BRENNAN, JR; JAMES C BRENNAN; THEODORE
M BRENNAN
Plaintiffs - Appellants - Cross-Appellees
v.
DICKIE BRENNAN & COMPANY INC; RICHARD J BRENNAN, JR
Defendants - Appellees - Cross-Appellants
RICHARD J BRENNAN; COUSINS RESTAURANTS INC; SEVEN SIXTEEN
IBERVILLE LLC
Defendants - Appellees
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
ON PETITION FOR REHEARING
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
PER CURIAM:
The defendants have filed a petition for panel rehearing in
which they ask that we further limit the scope of the proceedings
on remand.
Parts II.C.1 and II.C.2 of our opinion explained that the
1998 Agreement shields Richard Brennan Jr. (Dickie) and his

companies from trademark liability for uses permitted under the
Agreement, but not from liability for uses that exceed the
Agreement's permissions. The jury found that uses associated
with Dickie Brennan's Steakhouse, but not Dickie Brennan's Palace
Café, exceeded the permissions of the 1998 Agreement. We clarify
our mandate to make explicit that the plaintiffs may not pursue
on remand a trademark action against either Dickie or Cousins
(which operates the Palace Café) with regard to the Palace Café.
The defendants argue that there is no need for a remand even
regarding the Steakhouse restaurant, on the ground that the
plaintiffs' contract-based lost-profits award provides a complete
recovery on any trademark-related cause of action. Pet. for
Reh'g at 4-13. Our opinion indicated that the plaintiffs might
not be able to obtain any additional relief, but it is for the
district court to determine in the first instance whether
trademark-specific remedies are available and appropriate in this
case and whether the jury's award was inadequate to capture the
losses compensable in a trademark action.
Relying on an argument on which our opinion expressed no
view, see __ F.3d at __ [slip op. at 2846 n.7], the defendants
ask that we limit the scope of the actions that may be pursued on
remand against Richard Brennan Sr. Pet. for Reh'g at 3-4. Their
arguments in this regard may be addressed to the district court.
With that, the petition for rehearing is DENIED.
2