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

369 F.3d 1197 (2004)

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Dippin’ Dots, Inc v. Frosty Bites Distribution, LLC

United States Court of Appeals for the Eleventh Circuit

369 F.3d 1197 (2004)

Facts

In 1999, several retailers for Dippin’ Dots, Inc. (DDI) (plaintiff) formed the competing business Frosty Bites Distribution, LLC (FBD) (defendant) while still under contract with DDI. In March 2000, those retailers terminated their contracts and converted the former DDI locations by using the new FBD logo. As a result, DDI filed suit under the Lanham Act, alleging infringement of its unique flash-frozen ice cream product and its logo design. FBD moved for summary judgment and the trial court granted it, finding that the flash-frozen design was functional rather than unique and that the logos were so dissimilar that no consumer was likely to confuse the two. In determining that the product design was functional, the court took judicial notice of the fact that the color of ice cream indicates flavor. At oral arguments of the motion, the court questioned DDI’s counsel about the appropriateness of taking judicial notice, with DDI conceding that, generally, certain colors indicate certain flavors. DDI appealed the dismissal, arguing that the court taking judicial notice was ultimately improper.

Rule of Law

Issue

Holding and Reasoning (Dubina, J.)

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