United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 99-1404

E-Z Implements, Inc., a Minnesota corporation, Appellant, v. Marv Haugen Enterprises, Inc.; 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§ 1125(a). Having considered the record and the partiesÂ’ 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 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.

Appeal from the United States District Court for the District of Minnesota. [UNPUBLISHED]

Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir. 1996) (stating that

[1] The Honorable David S. Doty, United States District Judge for the District of Minnesota.