United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 99-1404 ___________

E-Z Implements, Inc., * a Minnesota corporation, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Marv Haugen Enterprises, Inc.; * [UNPUBLISHED] Virnig Manufacturing, Inc., * * Appellees. * ___________

Submitted: November 17, 1999

Filed: December 29, 1999 ___________

Before WOLLMAN, Chief Judge, LAY, and BOWMAN, Circuit Judges. ___________

PER CURIAM.

E-Z Implements, Inc. appeals from the district court’s1 grant of summary judgment in favor of defendants Marv Haugen Enterprises, Inc. and Virnig Manufacturing, Inc. in its action for trade dress infringement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Having considered the record and the parties’

1 The Honorable David S. Doty, United States District Judge for the District of Minnesota. submissions on appeal, we agree with the district court that E-Z Implements has presented no evidence that the trade dress of its product, the E-Z Digger, is nonfunctional, as is required for trade dress protection under the Lanham Act. See Insty*Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir. 1996) (stating that trade dress is protected only when it is primarily nonfunctional). Accordingly, the judgment is affirmed. See 8th Cir. R. 47B.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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