NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0352n.06

                                         No. 14-5939

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                               FILED
                                                                             May 11, 2015
                                                                         DEBORAH S. HUNT, Clerk
MICHAEL SCOTT WARD,                        )
WEDO FUNDRAISING, INC., d/b/a              )
FEREDONNA COMMUNICATIONS, and              )                 ON APPEAL FROM THE
PRINTVENTURE, INC., d/b/a FEREDONNA        )                 UNITED STATES DISTRICT
COMMUNICATIONS,                            )                 COURT FOR THE EASTERN
                                           )                 DISTRICT OF TENNESSEE
      Plaintiffs-Appellants,               )
                                           )                 OPINION
v.                                         )
                                           )
KNOX COUNTY BOARD OF EDUCATION and )
KNOX COUNTY,                               )
                                           )
      Defendants-Appellees.                )
___________________________________________)

       Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Since 1989, Knox County children have

sold coupon books as part of an annual fundraising campaign for their county’s schools. Michael

Scott Ward and Feredonna Communications (collectively, Feredonna) won the contract to print

Knox County’s coupon books in 1994. The relationship between Feredonna and Knox County

lasted until 2009, when Knox County switched to another, lower bidder.

       In 2011, Feredonna filed suit against both the Knox County Board of Education and Knox

County, alleging that Knox County’s coupon books infringe on the trademark, trade dress, and

copyright of Feredonna’s coupon books. The district court denied Feredonna’s requests for a

temporary restraining order (TRO) and a preliminary injunction, and eventually granted Knox
Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


County’s motion for summary judgment. For the reasons set forth below, we AFFIRM the

judgment of the district court.



                                      I. BACKGROUND

A.     Factual background

       The coupon-book fundraising concept spread to Knox County in 1989. Coupons entitle

the purchaser to receive discounts on a variety of merchants’ goods and services, while sales of the

coupon books benefit the county’s schools. For the first few years, the coupon-book program was

called “Kids First” and then “Class Coupons.” Knox County changed the name to “School

Coupons” for the 1993-94 school year, with the coupon book for that year also using the title

“Head of the Class.”

       Feredonna did not become involved with Knox County’s coupon-book program until

1994, when Feredonna won its first contract. The resulting coupon book for the 1994-95 school

year retained the name “School Coupons.” Feredonna continued to print coupon books for Knox

County, pursuant to various bid documents, from 1994 through 2009.               Besides printing,

Feredonna also designed and produced the coupon books and recruited merchants from outside of

Knox County.

       On September 29, 1997, Feredonna filed a trademark application for “School Coupons” as

a service, covering “charitable fund raising services on behalf of schools effected through the

distribution of books containing coupons which entitle the holders to receive discounts on dining,

hotels, travel, consumer merchandise, movies and other leisure activities.” The U.S. Patent and

Trademark Office (PTO) rejected the mark on July 9, 1998 and refused its registration on the

Principal Register because the mark was deemed “merely descriptive” under 15 U.S.C.

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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


§ 1052(e)(1). Feredonna subsequently amended its application to register the mark on the

Supplemental Register instead of the Principal Register, which the PTO allowed on May 11, 1999.

       When the registration became effective, Feredonna began including the ® symbol

whenever it used the “School Coupons” mark.         Feredonna also began claiming copyright

protection for the design, format, layout, and contents of the School Coupons books by 1998, and

registered its copyright for the 2009-2010 School Coupons coupon book in 2009. The “School

Coupons” trademark was used by Feredonna in connection with Knox County’s annual

coupon-book campaign for every year that the mark was registered.

       At the conclusion of the 2009 coupon-book campaign, Feredonna’s contract with Knox

County for the printing of the coupon books expired. Knox County then rebid the coupon-book

project, and Walsworth Publishing Company, Inc. (Walsworth) won the contract with a

significantly lower bid. In February 2010, Knox County sent a letter to those merchants who had

previously participated in the coupon-books program to announce the “re-branding” of the

program from “School Coupons Campaign” to “Knox County Schools Coupon Book.” The

coupon book for the 2010 campaign was titled “The Original Knox County Schools Coupon Book

Established 1989.”

B.     Procedural background

       On September 6, 2011, Feredonna filed suit against Knox County, Walsworth, and two

county employees, asserting claims of trademark, trade-dress, and copyright infringement.

Feredonna sought a TRO, a preliminary injunction, permanent injunctive relief, and damages.

The district court held a hearing on September 23, 2011 regarding Feredonna’s requests for a TRO




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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


and a preliminary injunction. Six days later, the court denied the requests, finding that Feredonna

had demonstrated neither a likelihood of success on the merits nor any irreparable harm.

       Walsworth and the county employees were voluntarily dismissed as defendants in 2012,

leaving Knox Country as the sole defendant. In April 2014, Feredonna and Knox County filed

competing motions for summary judgment.          Three months later, the district court denied

Feredonna’s motion, granted Knox County’s motion, and dismissed all of Feredonna’s claims.

Feredonna has timely appealed to this court.



                                        II. ANALYSIS

A.     Standard of review

       We review de novo a district court’s grant of summary judgment. Loyd v. St. Joseph

Mercy Oakland, 

, 588 (6th Cir. 2014). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a grant of summary judgment,

we must draw all reasonable inferences from the underlying facts in favor of the nonmoving party.

Hamilton v. Starcom Mediavest Grp., Inc., 

, 627 (6th Cir. 2008) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 

, 587 (1986)). The key inquiry is “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

, 251-52 (1986).




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B.     The district court properly granted summary judgment for Knox County on
       Feredonna’s trademark infringement claim

       Feredonna argues that Knox County infringed on Feredonna’s “School Coupons”

trademark, in violation of the Lanham Act. See 15 U.S.C. §§ 1114, 1125. The Lanham Act

protects against infringement of both registered and unregistered marks. DeGidio v. West Grp.

Corp., 

, 509 (6th Cir. 2004) (citing Two Pesos, Inc. v. Taco Cabana, Inc., 

, 768 (1992)). Before we can reach the issue of whether there has been any infringement,

however, Feredonna must first establish ownership of “a valid and legally protectable trademark.”

See 

mark in question is deemed not protectable, our analysis “ends there.” T. Marzetti

Co. v. Roskam Baking Co., 

, 633 (6th Cir. 2012).

       1. The “School Coupons” mark is descriptive

       “Only those marks that are ‘distinctive’ as a matter of law are accorded trademark

protection.” Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 

, 512 (6th Cir. 2007).

On a scale of increasing distinctiveness, a mark can be (1) generic; (2) descriptive; or

(3) suggestive, arbitrary, or fanciful. Two 

. The latter category of marks

is “inherently distinctive” and entitled to trademark protection because the intrinsic nature of the

mark serves to identify a particular source of a product. Id.; 

. On the

other hand, generic marks—those that identify the genus of which a particular product is a

species—are never entitled to trademark protection. 

& n.4.

       Descriptive marks, which describe “the qualities or characteristics of a good or service,”

Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 

, 194 (1985), fall in the middle and are

entitled to protection only if they develop a “secondary meaning,” 

(quoting Two 

). Secondary meaning indicates that a mark “has come


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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


through use to be uniquely associated with a specific source” of the product, rather than the

product itself. 

(quoting Two 

n.4) (internal

quotation marks omitted).     The district court found that the “School Coupons” mark was

descriptive but had not acquired a secondary meaning.

       Feredonna, in an attempt to avoid the descriptive-mark category, argues that the

registration of the “School Coupons” mark in the Supplemental Register, its own continuous use of

the mark, and Knox County’s subsequent acknowledgement of Feredonna’s ownership entitle the

mark to protection. In its reply brief, Feredonna further claims that the “School Coupons” mark is

inherently distinctive because, although “school coupons” generally refer to “coupons that one

might use to pay for school,” the “School Coupons” mark is “a fundraising product for the benefit

of schools.”

       But Feredonna places too much weight on the mark’s placement on the Supplemental

Register. Unlike registration on the Principal Register, registration on the Supplemental Register

does not entitle Feredonna to a presumption of valid trademark ownership. Cf. 

(“Registration of a mark on the Principal Register of the USPTO creates a rebuttable

presumption that a trademark is valid, that is, either inherently distinctive or descriptive with

secondary meaning, and therefore, protectable under federal trademark law.” (citing 15 U.S.C.

§ 1115(a))). In fact, amending an application for registration on the Principal Register to the

Supplemental Register—as Feredonna did here—“is a concession that the term is not inherently

distinctive.” 3 McCarthy on Trademarks and Unfair Competition § 19:43 (4th ed. 2015).

       Both the district court and the PTO determined that Feredonna’s trademark is descriptive.

“[A] trademark is merely descriptive if it describes one, or more, of the following: the intended



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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


purpose, function or use of the goods[;] the class of users of the goods; a desirable characteristic of

the goods; or the end effect upon the user.” 

(quoting Wynn Oil Co. v.

Thomas, 

, 1190 (6th Cir. 1988)) (internal quotation marks omitted). The PTO

explained that “School Coupons” is highly descriptive “because it describes a feature of the

services, namely coupons” and “the intended beneficiary of the services, namely, schools.” We

therefore agree with the district court’s conclusion that “School Coupons” is a descriptive mark.

       2. The “School Coupons” mark has not acquired a secondary meaning

       Marks that are descriptive are protected only if they develop a secondary meaning.

. “A descriptive mark achieves secondary meaning when in the minds

of the public, the primary significance of a product feature or term is to identify the source of the

product rather than the product.” 

Labs, Inc. v. Ives Labs., Inc., 

,

851 n.11 (1982)) (internal quotation marks omitted). To determine whether a descriptive mark

has acquired a secondary meaning, we look to seven factors, with no single factor being

determinative: (1) direct consumer testimony; (2) consumer surveys; (3) exclusivity, length, and

manner of use; (4) amount and manner of advertising; (5) amount of sales and number of

customers; (6) established place in the market; and (7) proof of intentional copying. Herman

Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 

, 311-12 (6th Cir. 2001).

       Feredonna, relying solely on its amended complaint, claims that it used the “School

Coupons” mark “exclusively and consistently for approximately 20 years.” Knox County does

not dispute this assertion, and the report of its own expert witness shows that Feredonna used the

“School Coupons” mark from the 1994-95 campaign year through the 2009-10 campaign year.

Viewing the evidence in the light most favorable to Feredonna, the third factor—exclusivity,



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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


length, and manner of use—supports a finding of secondary meaning. But, unfortunately for

Feredonna, the other six factors do not.

       Crucially, Feredonna has provided no direct consumer testimony or consumer surveys.

Although the lack of survey evidence is not fatal to Feredonna’s claim, consumer surveys are “the

most direct and persuasive evidence” of secondary meaning. Herman 

.

The evidence in the record concerning the remaining factors is scant. Feredonna again cites only

its amended complaint for its assertions that the “coupon book campaign regularly received media

attention and advertising” and that it “sold well over 2,300,000 coupon books.”

       But as Knox County points out, the record contains no advertisements or media reports.

And the claim of 2,300,000 coupon books sold appears to refer to the number of coupon books that

Knox County sold between the years 1994 and 2009. The contracts between Feredonna and Knox

County called for Feredonna to print the coupon books, not to sell them.

       To prove intentional copying, Feredonna points to a February 5, 2010 letter from Knox

County to the surrounding business community and to a “2010 Merchant Participation

Application.” The letter states, in relevant part, as follows:

       The Knox County School System is re-branding the coupon book program for
       2010. The product that has been known as the School Coupons Campaign will
       now be known as the Knox County Schools Coupon Book. Our book will be sold
       exclusively within the Knox County School System. It is a product produced by
       Knox County Schools for our district schools.

       You may continue to see School Coupons in this market, as the company that holds
       the rights to that name produces a coupon book and discount card by the same name
       that will be sold in surrounding counties. Neither of these products has been
       approved as a fundraising program within the Knox County School System.

       Feredonna contends that Knox County “presented [the] new product as if it were the

established School Coupons® product owned by Feredonna.” And Feredonna argues that the


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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


2010 Merchant Participation Application is a solicitation for past participants to “Repeat Current

Offer,” thus “suggesting that the Knox County Schools product was a continuation of the School

Coupons® product.”

       But even construing the above two documents in the light most favorable to Feredonna,

they do not support an inference that Knox County intentionally copied the “School Coupons”

mark. Indeed, the letter explicitly distinguishes the new Knox County Schools Coupon Book

from “School Coupons.” The 2010 Merchant Participation Application, moreover, includes the

Knox County Schools Coupon Book logo at the top of the application while making no mention of

the “School Coupons” mark. Simply referring to the “School Coupons” mark or program while

discussing the Knox County Schools Coupon Book does not prove that Knox County copied

Feredonna’s mark, let alone that it did so with an intent to copy.

       Finally, Feredonna relies on the report of its expert witness to argue that, given

Feredonna’s history and continued usage of the “School Coupons” mark, there is a presumption

that the mark has taken on a secondary meaning. But no other evidence supports this conclusory

claim. Feredonna argues that this supposed presumption is consistent with the Lanham Act’s

presumption of secondary meaning for marks that have been used continuously in commerce for

more than five years. See 15 U.S.C. § 1052(f).

       Section 1052(f), however, concerns the registration of trademarks on the Principal

Register and states that a presumption of distinctiveness may be applied after five years of

continuous use. See 

Knox County points out, the PTO’s Trademark Manual of

Examining Procedure states that “[i]f the mark is highly descriptive . . . , the statement of five




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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


years’ use alone will be deemed insufficient to establish acquired distinctiveness.” Trademark

Man. of Exam. Proc. 1212.05(a) (Apr. 2014 ed.).

       Only one of the seven factors that this court looks to in determining whether a descriptive

mark has acquired a secondary meaning (exclusivity and length of use) supports Feredonna’s

claim that the “School Coupons” mark has done so.                Because “[n]o single factor is

determinative,” Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 

, 312 (6th Cir.

2001), evidence that Feredonna exclusively and continuously used the “School Coupons” mark for

many years is not enough to overcome the lack of evidence regarding the other six factors, and is

insufficient in our opinion for a jury to reasonably find for Feredonna on the secondary-meaning

issue. See Anderson v. Liberty Lobby, Inc., 

, 252 (1986) (noting that for a plaintiff to

avoid summary judgment for the defendant, “there must be evidence on which the jury could

reasonably find for the plaintiff”).

       We therefore conclude that the “School Coupons” mark is not entitled to trademark

protection. And “because we have concluded that the mark in this case is not protectable, we

need not address the likelihood of confusion.” See T. Marzetti Co. v. Roskam Baking Co., 

, 634-35 (6th Cir. 2012). In sum, the district court did not err in granting summary

judgment for Knox County on Feredonna’s trademark infringement claim.

C.     The district court properly granted summary judgment for Knox County on
       Feredonna’s claim of trade-dress infringement

       Feredonna next claims that Knox County infringed on the trade dress of the “School

Coupons” coupon books, in violation of 15 U.S.C. § 1125(a). “Trade dress refers to the image

and overall appearance of a product. It embodies that arrangement of identifying characteristics

or decorations connected with a product, whether by packaging or otherwise, that makes the


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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


source of the product distinguishable from another and promotes its sale.” Abercrombie & Fitch

Stores, Inc. v. Am. Eagle Outfitters, Inc., 

, 629 (6th Cir. 2002) (internal quotation

marks and alterations omitted).

        Trade dress “may include features such as size, shape, color or color combinations, texture,

graphics, or even particular sales techniques.” 

Pesos, Inc. v. Taco Cabana, Inc.,

, 764 n.1 (1992)). To prevail on a trade-dress infringement claim, a party must prove

that the trade dress in question is entitled to protection—in other words, that it is (1) distinctive,

and (2) primarily nonfunctional—and then that (3) the trade dress of the competing product is

confusingly similar. 

Stores, Inc. v. Samara Bros., Inc., 

, 210

(2000)).

        Like a trademark, trade dress is either inherently distinctive or may acquire distinctiveness

through secondary meaning. 

(citing Inwood Labs, Inc. v. Ives Labs, Inc., 

,

851 n.11 (1982)). Product design or configuration, as opposed to product packaging, is never

inherently distinctive, and is protectable only if it has acquired a secondary meaning. Samara

(“[I]n an action for infringement of unregistered trade dress . . . , a product’s

design is distinctive, and therefore protectable, only upon a showing of secondary meaning.”);

(“[N]o product configuration can meet the distinctiveness

requirement of the Lanham Act by a showing of inherent distinctiveness but must rely instead on

acquired distinctiveness, i.e., a showing of secondary meaning.”); see also Groeneveld Transp.

Efficiency, Inc. v. Lubecore Int’l, Inc., 

, 503 (6th Cir. 2013) (laying out the elements

of a product-design trade-dress infringement claim).               This is because “a product’s

configuration—unlike its packaging—is inextricably tied to the product itself, such that even the



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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


most unusual features of a product’s design cannot automatically identify which producer crafted

the product because consumers are not predisposed to treat design features as an indication of

source.” 

.

         Feredonna argues that its trade dress is inherently distinctive, but bases its claim largely on

the style and “design” of the coupon books, which must acquire a secondary meaning to be

distinctive. See Samara 

. On appeal, Feredonna asserts trade-dress

protection based on the size and shape of the coupon booklets, the design of the front cover (which

includes the use of a student’s photograph, the listing of sponsors, and the color), and the “texture,

quality, and weight” of the booklets’ cover and interior paper. But the size, shape, and feel of the

coupon books all relate to their design, rather than to their packaging, because such features are

“inextricably tied to the product itself.” See 

.

         The cover, on the other hand, could be construed as either packaging or design, depending

on whether the purchaser buys the coupon book to support the county’s schools or to make use of

the coupons inside. See Samara 

(“[A] classic glass Coca-Cola bottle, for

instance, may constitute packaging for those consumers who drink the Coke and then discard the

bottle, but may constitute the product itself for those consumers who are bottle collectors, or part

of the product itself for those consumers who buy Coke in the classic glass bottle, rather than a can,

because they think it more stylish to drink from the former.”). In this instance, we will follow the

Supreme Court’s directive to “err on the side of caution and classify ambiguous trade dress as

product design, thereby requiring secondary meaning,” 

to the coupon book’s

cover.




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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


       We use the same seven factors to analyze secondary meaning in a trade-dress case as in a

trademark case. Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 

, 311-12 (6th

Cir. 2001). On appeal, Feredonna cites the identical evidence in support of its trade-dress claim

as it does its trademark claim, arguing that it “used the trade dress in commerce exclusively and

consistently for over 15 years,” that the “School Coupons” campaign “regularly received media

attention and advertising,” and that it “sold well over 2,300,000 coupon books.” But the lack of

supporting evidence as discussed above is just as telling in the trade-dress context.

       Feredonna separately notes Knox County’s “mimicry” of Feredonna’s trade dress, pointing

to the “striking similarities” between the covers of both parties’ coupon books. But mere

similarity between the two covers does not support an inference of intentional copying. And even

if this court were to assume that Knox County intentionally copied Feredonna’s trade dress, “it is

only one of many considerations in that test and does not alone establish secondary meaning.”

See Gen. Motors Corp. v. Lanard Toys, Inc., 

, 419 (6th Cir. 2006).

       Feredonna, in sum, has failed to establish that the disputed trade dress has acquired a

secondary meaning. Because this deficiency makes Feredonna’s trade dress unprotectable, we

conclude that the district court appropriately granted summary judgment for Knox County on the

trade-dress infringement claim.

D.     The district court properly granted summary judgment for Knox County on
       Feredonna’s copyright infringement claim

       Feredonna, in addition to alleging trademark and trade-dress infringement, claims that

Knox County infringed upon Feredonna’s copyright for the “School Coupons” coupon book. To

prevail on a copyright infringement claim, a plaintiff must show (1) ownership of a valid

copyright, and (2) that the defendant copied protectable elements of the work. Lexmark Int’l, Inc.


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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939


v. Static Control Components, Inc., 

, 534 (6th Cir. 2004) (citing Feist Publ’ns, Inc. v.

Rural Tel. Serv. Co., 

, 361 (1991)). Feredonna registered its copyright for the

2009-2010 “School Coupons” coupon book in August 2011, which presumptively establishes the

first prong of its copyright claim. See 

.

       “The second prong tests whether any copying occurred (a factual matter) and whether the

portions of the work copied were entitled to copyright protection (a legal matter).” 

even if we were to assume that Feredonna owns a valid copyright, “not all copying is actionable”;

Feredonna must still prove “copying of constituent elements of the work that are original.”

Kohus v. Mariol, 

, 853 (6th Cir. 2003) (quoting 

) (internal

quotation marks omitted) (emphasis in original).            “The sine qua non of copyright is

originality. . . . Original . . . means only that the work was independently created by the author (as

opposed to copied from other works), and that it possesses at least some minimal degree of

creativity.” 

(citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B]

(1990)).

       Feredonna focuses its copyright claim on the “new advertising copy” that it created from

“raw offer verbiage from merchants,” pointing to both the language and format of the copy.

Although Feredonna states in its reply brief that Knox County copied Feredonna’s “advertising

language,” the affidavit upon which Feredonna relies reflects that such “language” refers to

Feredonna “standardiz[ing] the style for the wording of coupon offers, merchant addresses, and

coupon valuations.” (Emphasis added.) By its own admission, Feredonna did nothing but

change the style and format of the language submitted by merchants, which this circuit has held is

not enough to reflect the requisite originality. See M. M. Bus. Forms Corp. v. Uarco, Inc.,



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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939

, 1139-40 (6th Cir. 1973) (holding that a business form for television servicemen

was not original because it amounted to “nothing more” than “a mosaic of the language appearing

on other existing forms allready [sic] in the public domain”). The court found that, “[e]ven

though word arrangements ha[d] been altered, they [we]re at best merely a paraphrasing of earlier

forms.” 

That is exactly the case here.

       Moreover, even if we were to assume that Feredonna’s advertising copy is original, the

evidence in the record does not create a genuine dispute of material fact regarding whether Knox

County copied Feredonna’s booklets. Feredonna’s own expert witness concluded that there were

“too many differences and not enough similarities[] to sustain a claim of substantial similarity to

support a claim of copyright infringement.” Focusing on the interior content of the booklets,

Feredonna’s expert witness also found no similarities: “The first pages include a directory, but

both Plaintiff[’s] and Defendant’s design[s] are different in their font, type and size, and overall

arrangement. Subsequent pages, containing the coupons[,] are different in color, font, graphic art,

and text.” We therefore conclude that the district court appropriately granted summary judgment

for Knox County on Feredonna’s copyright infringement claim.

E.     Feredonna’s request for preliminary injunctive relief

       Finally, Feredonna appeals the district court’s denial of its motion for a preliminary

injunction, claiming that the court “committed a series of errors, both in fact and law.” Because

we affirm the district court’s grant of summary judgment against Feredonna on all grounds, we

need not review the denial of the preliminary injunction.



                                      III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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