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Dippin' Dots, Inc. v. Frosty Bites Distrib., LLC

United States Court of Appeals for the Eleventh Circuit

May 11, 2004, Decided ; May 11, 2004, Filed

No. 03-14047

Opinion

 [***1708]   [*1200]  DUBINA, Circuit Judge:

Plaintiff-Appellant Dippin' Dots, Inc. ("DDI") brought suit against Defendant-Appellee Frosty Bites Distribution, LLC ("FBD") alleging trade dress infringement of DDI's product design and logo design, both in violation of the Lanham Act, 15 U.S.C. § 1125. The district court granted summary judgment in favor of FBD on both claims. For the reasons that follow, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts

Plaintiff DDI markets and sells a brightly-colored flash-frozen ice cream product, called "dippin' dots," consisting of free flowing small spheres or beads 2 of ice cream. Curtis Jones, DDI's founder, applied for and received Patent No. 5,126,156 ("Patent '156") for the method DDI uses to make dippin' dots. Patent '156 contains six steps: (1)  [**2]  preparing an alimentary ice cream composition for freezing, (2) dripping said composition into a freezing chamber, (3) freezing said composition into beads, (4) storing said beads at a temperature at least as low as -20 [degree] F so as to maintain said beads free flowing for an extended period of time, (5) bringing said beads to a temperature between substantially -10 [degree] F and -20 [degree] F prior to serving, and (6) serving said beads for consumption at a temperature between substantially -10 [degree] F and -20 [degree] F so that the beads are free flowing when served. 3 DDI is the exclusive licensee of Patent '156.

 [**3]  DDI primarily sells its dippin' dots from colorful kiosks or stands at amusement parks, sporting venues, and shopping malls. To identify itself at these locations, DDI has a distinctive logo made up of an oval of blue, yellow, and pink spheres surrounding the product name, "dippin' dots," in blue letters. Below this oval of spheres  [*1201]  is a tag line touting dippin' dots as the "Ice Cream of the Future."

Defendant FBD makes and sells a competing brightly-colored flash-frozen ice cream product, called "frosty bites," consisting of mostly small popcorn-shaped, along with some spherical-shaped, ice cream bites. FBD creates its product by streaming and dripping an ice cream solution into liquid nitrogen where it freezes and forms beads and clusters of frozen ice cream. The frozen product then passes through a "cluster buster," where the clusters are broken down into smaller pieces. The product then moves through a system of conveyor belts, further breaking the ice cream into small beads and popcorn-like clusters.

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369 F.3d 1197 *; 2004 U.S. App. LEXIS 9217 **; 70 U.S.P.Q.2D (BNA) 1707 ***; 64 Fed. R. Evid. Serv. (Callaghan) 617; 17 Fla. L. Weekly Fed. C 549

DIPPIN' DOTS, INC., Plaintiff-Appellant, versus FROSTY BITES DISTRIBUTION, LLC, Defendant-Appellee.

Subsequent History: US Supreme Court certiorari denied by Dippin' Dots, Inc. v. Frosty Bites Distrib., LLC, 543 U.S. 1054, 125 S. Ct. 911, 160 L. Ed. 2d 777, 2005 U.S. LEXIS 513 (2005)

Prior History:  [**1]  Appeal from the United States District Court for the Northern District of Georgia. D. C. Docket No. 01-00202 CV-TWT-1.

In re Dippin' Dots Patent Litig., 249 F. Supp. 2d 1346, 2003 U.S. Dist. LEXIS 8516 (N.D. Ga., 2003)

Disposition: Affirmed.

CORE TERMS

ice cream, trade dress, logos, color, judicial notice, district court, dippin, beads, product design, features, factors, infringement, similarity, freezing, summary judgment, signifies, Frosty, bites, functionality, patent, blue, consumers, flavor, flash-frozen, consisting, dissimilar, chocolate, producer, products, designs

Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, General Overview, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Business & Corporate Compliance, Federal Unfair Competition Law, False Designation of Origin, Elements of False Designation of Origin, Trademark Law, Entertainment Industry Falsity & Performance Misattribution, Trade Dress Protection, False Advertising, Lanham Act, Subject Matter of Trademarks, Nontraditional Trademarks, Color Marks, Conveyances, Causes of Action, Infringement Actions, Burdens of Proof, Elements of Trade Dress Infringement, Causes of Action Involving Trademarks, Terms Requiring Secondary Meaning, Copyright Law, Subject Matter, Patent & Utility Considerations, Evidence, Judicial Notice, Adjudicative Facts, Facts Generally Known, Patent Law, Trademark Cancellation & Establishment, Exclusive Rights, Similarity of Marks, Appearance, Meaning & Sound, Appearance, Likelihood of Confusion, Consumer Confusion, Factors for Determining Confusion, Intent of Defendant to Confuse, Ownership Rights, Reproductions, Unfair Competition