(United States Fifth Circuit) - In an action alleging infringement of a star design that plaintiff claimed as a service mark,summary judgment for defendant is affirmed in section where: 1) the record evidence was replete with similar or identical five-pointed stars, both raised and set in circles, or used in similar manners,such that -- however the residual evidence of the presumption of validity -- no fair jury could find that the star symbol was even a mere refinement of this commonly adopted and well-known form of ornamentation; and 2) plaintiff failed to raise a fact issue regarding the existence of secondary meaning with respect to the symbol. However, the judgment is reversed in section where plaintiff had not yet had the opportunity to introduce evidence relating to its trade dress claims.
Source: findlaw.com