ODDZON PRODUCTS, INC., Plaintiff-Appellant, v. JUST TOYS, INC.

122 F.3d 1396, *; 1997 U.S. App. LEXIS 21109, **;43 U.S.P.Q.2D (BNA) 1641three additional balls that lacked these essential featuresis not probative of trade dress infringement. We areunpersuaded by OddzOn's remaining critique of thedistrict court's analysis. Viewing the evidence in a lightmost favorable to OddzOn, we hold that the district courtdid not err in concluding that OddzOn has failed toestablish that a likelihood of confusion exists betweenJust Toys' balls and OddzOn's balls. We have alsoconsidered OddzOn's arguments regarding infringementof its right to protect the trade dress of its packaging andfind them equally unpersuasive. As the district courtnoted, although there are some similarities between thepackaging, e.g., they are both rectangular in shape andhave the balls mounted on an upward sloping surface,there are also many differences. OddzOn's packagingcarries a prominent sports star's picture and endorsement,[**32] while Just Toys' packaging does not.Furthermore, different color schemes are used. Mostsignificantly, OddzOn relies on its trade dress survey asestablishing a likelihood of confusion regarding thepackaging. As previously stated, this survey isinsufficient to demonstrate that consumer confusion wasrelated to any protectable aspect of OddzOn's trade dress.We therefore hold that the district court did not err inconcluding that OddzOn has failed to establish that alikelihood of confusion exists between Just Toys'packaging and OddzOn's packaging.E. The Remaining ClaimsOddzOn argues that the district court's summaryjudgment that there was no unfair competition understate law must be reversed because it failed to addressOddzOn's evidence of design patent infringement andtrade dress infringement. This argument is without merit.This claim is premised on the same facts and argumentsPage 8as those proffered to support OddzOn's federal claims.Having decided that Just Toys' design was sufficientlydissimilar to OddzOn's design to avoid both designpatent and trade dress infringement, the district court didnot err by summarily granting Just Toys' motion on thisclaim. Because [**33] we affirm the district court'srulings on the federal law claims, we likewise affirm itsruling that the evidence equally fails to support the unfaircompetition claim. We have considered OddzOn'sremaining arguments and find them to be without merit.Finally, in its cross-appeal, Just Toys argues that thedistrict court erroneously affirmed the magistrate judge'sorder compelling [*1409] production of privilegeddocuments related to Just Toys' defense to the charge ofwillful infringement. Because we affirm the districtcourt's holding of non-infringement, this issue is moot,and accordingly the magistrate judge's June 6, 1996 ordergranting plaintiff's expedited motion to compel isvacated.CONCLUSIONThe district court did not err in granting Just Toys'motion for summary judgment on OddzOn's designpatent claim and on its trade dress and state-law unfaircompetition claims. Furthermore, the district court didnot err in granting OddzOn's motion for summaryjudgment that Just Toys failed to establish invalidity ofthe '001 patent. In addition, the district court's ordercompelling production of privileged documents isvacated as moot. Accordingly, the district court'sjudgment is [**34] affirmed.AFFIRMED