IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30121 Summary Calendar

JOHNNY L. DUNCAN,

Plaintiff-Appellant,

versus

BOB WOOD; NIKE-UNITED STATES OF AMERICA; PHIL KNIGHT; NIKE INC.; WIEDEN & KENNEDY LLC,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-3777-S -------------------- November 19, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Johnny L. Duncan appeals from the summary judgment dismissal

of his suit alleging that the defendants' advertising campaign

using variations of the slogan "I Can" violated his copyright in a

poem that he created in 1986 entitled "I Can." After a de novo

review, we affirm.

The defendants argue that our review is limited to determining

whether the district court abused its discretion in denying

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-30121 -2-

Duncan's purported Rule 60(b) motion. Because Duncan's motion was

filed within ten days of the district court's summary judgment, it

is treated as a Rule 59(e) motion. See Harcon Barge Co. v. D & G

Boat Rentals, Inc.,

(5th Cir. 1986)(en banc).

Although Duncan's notice of appeal designated only the denial of

the post-judgment motion, we overlook such technical errors or

mistakes and infer that Duncan intended to appeal the adverse

underlying judgment. See Lockett v. Anderson,

(5th Cir. 2000).

Duncan argues that his summary judgment evidence demonstrated

that the defendants had access to his poem "I Can" because the poem

appeared for several years in a calendar, a book, and a poetry

anthology, all of which Duncan asserts were distributed throughout

the country. He also asserts that his poem and the defendants'

advertisements were substantially similar. We conclude from a

review of the record that Duncan has failed to show more than a

bare possibility that the defendants had access to his work and

that the poem and advertisements are not substantially similar.

See Peel & Co., Inc. v. The Rug Market,

(5th Cir.

2001); Ferguson v. National Broadcasting Co., Inc.,

(5th Cir. 1978).

AFFIRMED.