Case: 19-1781    Document: 61    Page: 1   Filed: 05/14/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                LANARD TOYS LIMITED,
                   Plaintiff-Appellant

                            v.

   DOLGENCORP LLC, JA-RU, INC., TOYS "R" US-
             DELAWARE, INC.,
             Defendants-Appellees
            ______________________

                       2019-1781
                 ______________________

    Appeal from the United States District Court for the
 Middle District of Florida in No. 3:15-cv-00849-MMH-PDB,
 Judge Marcia Morales Howard.
                   ______________________

                 Decided: May 14, 2020
                 ______________________

     RICHARD PAUL SYBERT, Gordon Rees Scully Man-
 sukhani LLP, San Diego, CA, for plaintiff-appellant. Also
 represented by REID E. DAMMANN, Los Angeles, CA.

     LEWIS ANTEN, Lewis Anten, PC, Encino, CA, for de-
 fendants-appellees. Also represented by FREDERICK D.
 PAGE, Holland & Knight LLP, Jacksonville, FL; ILENE
 PABIAN, Miami, FL.
                 ______________________

   Before LOURIE, MAYER, and WALLACH, Circuit Judges.
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 2                   LANARD TOYS LIMITED    v. DOLGENCORP LLC



 LOURIE, Circuit Judge.
      Lanard Toys Limited (“Lanard”) appeals from the deci-
 sion of the United States District Court for the Middle Dis-
 trict of Florida granting summary judgment in favor of
 Dolgencorp LLC, Ja-Ru, Inc., and Toys “R” Us–Delaware,
 Inc. (collectively, “Appellees”) with respect to Lanard’s
 claims for design patent infringement, copyright infringe-
 ment, trade dress infringement, and statutory and common
 law unfair competition. Lanard Toys Ltd. v. Toys “R” Us-
 Delaware, Inc., No. 3:15-cv-849-J-34PDB, 2019 WL
 1304290 (M.D. Fla. Mar. 21, 2019) (“Decision”). For the
 reasons described below, we affirm.
                        BACKGROUND
     Lanard makes and sells the “Lanard Chalk Pencil,”
 which is a toy chalk holder designed to look like a pencil.
 Lanard owns Design Patent D671,167 (the “D167 patent”),
 which contains five figures showing a pencil-shaped chalk
 holder from different angles. The D167 patent claims:
 “The ornamental design for a chalk holder, as shown and
 described.” Lanard also owns copyright Reg. VA 1-794-458
 (the “’458 copyright”) for a work entitled “Pencil/Chalk
 Holder.” The relevant images are depicted below.
     Lanard Chalk       D167 patent         ’458 copyright
        Pencil            (Fig. 1)           (first image)
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 LANARD TOYS LIMITED   v. DOLGENCORP LLC                    3



     In 2011, Lanard began selling the Lanard Chalk Pencil
 to Dolgencorp LLC (“Dolgencorp”), which is a national dis-
 tributor. In 2012, Lanard began selling the Lanard Chalk
 Pencil to Toys “R” Us–Delaware, Inc. (“TRU”), which was a
 large toy retailer with stores throughout the United States.
 All Lanard Chalk Pencils sold to Dolgencorp and TRU were
 marked to indicate Lanard’s copyright and patent (or pend-
 ing patent) protection.
     In 2012, Ja-Ru, Inc. (“Ja-Ru”) designed a toy chalk
 holder that looks like a pencil.
                       Ja-Ru Product




 It is undisputed that Ja-Ru used the Lanard Chalk Pencil
 as a reference sample in designing its product. In late
 2013, Dolgencorp and TRU stopped ordering units of the
 Lanard Chalk Pencil and instead began ordering and sell-
 ing the Ja-Ru product.
     On March 27, 2014, Lanard filed suit in the United
 States District Court for the District of New Jersey against
 Dolgencorp, TRU, and Ja-Ru, J.A. 168–84, and the case
 was subsequently transferred to the Middle District of
 Florida, J.A. 1122–32. Lanard’s Second Amended Com-
 plaint, which is the operative complaint in the case, asserts
 four causes of action: (1) copyright infringement; (2) design
 patent infringement; (3) trade dress infringement; and (4)
 statutory and common law unfair competition under fed-
 eral and state law. J.A. 1180–96.
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 4                   LANARD TOYS LIMITED     v. DOLGENCORP LLC



      The parties filed cross motions for summary judgment
 relating to all claims, and the district court granted Appel-
 lees’ motion. Decision, 2019 WL 1304290, at *28–29. Spe-
 cifically, the court granted summary judgment that Ja-Ru’s
 product does not infringe the D167 patent, that the ’458
 copyright is invalid and alternatively not infringed by Ja-
 Ru’s product, that Ja-Ru’s product does not infringe
 Lanard’s trade dress, and that Lanard’s unfair competition
 claims fail because its other claims fail. Id. at *28. Lanard
 appealed, and we have jurisdiction under 28 U.S.C.
 § 1295(a)(1).
                         DISCUSSION
      We review a district court’s grant of summary judg-
 ment according to the law of the regional circuit. Kaneka
 Corp. v. Xiamen Kingdomway Grp. Co., 790 F.3d 1298,
 1303 (Fed. Cir. 2015) (citing Halo Elecs., Inc. v. Pulse El-
 ecs., Inc., 769 F.3d 1371, 1377 (Fed. Cir. 2014)). In the
 Eleventh Circuit, a grant of summary judgment is re-
 viewed de novo, “construing the facts and all reasonable in-
 ferences from the facts in favor of the nonmoving party.”
 Stardust, 3007 LLC v. Brookhaven, 899 F.3d 1164, 1170
 (11th Cir. 2018) (citing Urquilla-Diaz v. Kaplan Univ., 780
 F.3d 1039, 1050 (11th Cir. 2015)). Summary judgment is
 appropriate when “there is no genuine dispute as to any
 material fact and the movant is entitled to judgment as a
 matter of law.” Fed. R. Civ. P. 56(a).
                               I
      We begin, as the district court did, with Lanard’s claim
 for design patent infringement. Determining whether a de-
 sign patent has been infringed is a two-part test: (1) the
 court first construes the claim to determine its meaning
 and scope; (2) the fact finder then compares the properly
 construed claim to the accused design. Elmer v. ICC Fab-
 ricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995). In com-
 paring the patented and accused design, the “ordinary
 observer” test is applied—i.e., infringement is found “[i]f,
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 in the eye of an ordinary observer, giving such attention as
 a purchaser usually gives, two designs are substantially
 the same, if the resemblance is such as to deceive such an
 observer, inducing him to purchase one supposing it to be
 the other.” Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d
 665, 670 (Fed. Cir. 2008) (en banc) (quoting Gorham Mfg.
 Co. v. White, 81 U.S. (14 Wall.) 511, 528 (1871)). The in-
 fringement analysis must compare the accused product to
 the patented design, not to a commercial embodiment. See
 Payless Shoesource, Inc. v. Reebok Int’l, Ltd., 998 F.2d 985,
 990 (Fed. Cir. 1993); see also High Point Design LLC v.
 Buyer’s Direct, Inc., 621 F. App’x 632, 642 (Fed. Cir. 2015)
 (“We have long-cautioned that it is generally improper to
 determine infringement by comparing an accused product
 with the patentee’s purported commercial embodiment.”
 (citing Sun Hill Indus., Inc. v. Easter Unlimited, Inc., 48
 F.3d 1193, 1196 (Fed. Cir. 1995), abrogated on other
 grounds by Egyptian Goddess, 543 F.3d at 672–79)).
     Lanard asserts three challenges against the district
 court’s decision on design patent infringement. First,
 Lanard argues that the court erred in its claim construc-
 tion by eliminating elements of the design based on func-
 tionality and lack of novelty. Second, Lanard argues that
 the court erred in its infringement analysis by conducting
 an element-by-element comparison rather than comparing
 the overall designs. Third, Lanard argues that the court
 used a rejected “point of novelty” test to evaluate infringe-
 ment.
     Appellees respond that the court properly construed
 the claims by relying on the drawings and also noting the
 ornamental and novel aspects of the design. Appellees ar-
 gue that the court used the correct “ordinary observer” test
 to compare the overall appearance of the patented design
 with the Ja-Ru product. According to Appellees, the court
 properly considered how each element, particularly non-
 functional and novel elements, impacts the overall
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 6                    LANARD TOYS LIMITED    v. DOLGENCORP LLC



 appearance of the patented design. For the following rea-
 sons, we agree with Appellees.
     We review a district court’s claim construction of a de-
 sign patent de novo. Sport Dimension, Inc. v. Coleman Co.,
 820 F.3d 1316, 1320 (Fed. Cir. 2016) (citing Ethicon Endo-
 Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1333 (Fed.
 Cir. 2015)). Regarding claim construction, we have in-
 structed trial courts that design patents “typically are
 claimed as shown in drawings,” but that it can be helpful
 to “distinguish[] between those features of the claimed de-
 sign that are ornamental and those that are purely func-
 tional.” Egyptian Goddess, 543 F.3d at 679–80 (citations
 omitted). Indeed, we have made clear that “[w]here a de-
 sign contains both functional and non-functional elements,
 the scope of the claim must be construed in order to identify
 the non-functional aspects of the design as shown in the
 patent.” Sport Dimension, 820 F.3d at 1320 (quoting
 OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405
 (Fed. Cir. 1997)).
      Here, the district court followed our claim construction
 directives to a tee. The court began its claim construction
 analysis by reproducing the five exemplary figures from
 the patent and noting its reliance on those drawings. De-
 cision, 2019 WL 1304290, at *11. Then, in an effort to clar-
 ify the scope of the protected subject matter, the court
 considered the functional features of the design, as well as
 the functional purpose of the writing utensil as a whole,
 including its proportions. Id. (considering the functionality
 of the “conical tapered piece,” “elongated body,” “ferrule,”
 “eraser,” “the design’s functional purpose as a writing uten-
 sil,” “the general thickness of the design,” and “the circular
 opening at the tapered end”). Although Lanard criticizes
 the court for allegedly “eliminating” entire elements of the
 claimed design, see Appellant Br. 32–38, on the contrary,
 the district court meticulously acknowledged the ornamen-
 tal aspects of each functional element, including “the co-
 lumnar shape of the eraser, the specific grooved
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 LANARD TOYS LIMITED   v. DOLGENCORP LLC                      7



 appearance of the ferrule, the smooth surface and straight
 taper of the conical piece, and the specific proportional size
 of these elements in relation to each other.” Decision, 2019
 WL 1304290, at *12. In light of our precedent regarding
 claim construction for design patents, we see no error in
 the approach taken by the district court to construe the
 claims commensurate with the statutory protection af-
 forded to an ornamental design.
      Next the district court considered our instruction that
 it is helpful to point out “various features of the claimed
 design as they relate to the accused design and the prior
 art.” Id. at *9 (quoting Egyptian Goddess, 543 F.3d at 680).
 Thus, the court considered the numerous prior art refer-
 ences cited by the examiner on the face of the D167 patent,
 as well as other designs identified by Appellees, all directed
 to the shape and design of a pencil. The district court thus
 recognized that “the overall appearance of Lanard’s design
 is distinct from this prior art only in the precise proportions
 of its various elements in relation to each other, the size
 and ornamentation of the ferrule, and the particular size
 and shape of the conical tapered end.” Id. at *12. In so
 doing, the district court fleshed out and rejected Lanard’s
 attempt to distinguish its patent from the prior art by im-
 porting the “the chalk holder function of its design” into the
 construction of the claim. Id. at *13. Again, we see no error
 in the district court’s approach to claim construction.
     Finally, having construed the claim consistent with the
 drawings and pointed out the ornamental and functional
 features of the design as well as the various features as
 they relate to the prior art, the district court proceeded to
 the question of infringement. The court applied the well-
 established “ordinary observer” test to compare the overall
 design and appearance of the claimed design with that of
 the accused Ja-Ru product. Id. at *15–18. The court began
 by placing the patented design side-by-side with the Ja-Ru
 product and noting that they “share a broad design con-
 cept—they are both chalk holders designed to look like a
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 8                   LANARD TOYS LIMITED     v. DOLGENCORP LLC



 no. 2 pencil.” Id. But, importantly, the court noted that
 “[t]he problem for Lanard, however, is that the design sim-
 ilarities stem from aspects of the design that are either
 functional or well-established in the prior art.” Id. at *18.
 Thus, the court found that “the attention of the ordinary
 observer ‘will be drawn to those aspects of the claimed de-
 sign that differ from the prior art,’” id. (quoting Egyptian
 Goddess, 543 F.3d at 676), which would cause “the distinc-
 tions between the patented and accused designs [to be]
 readily apparent,” id. at *16. The court concluded, based
 on the evidence presented, that no reasonable fact finder
 could find that an ordinary observer, taking into account
 the prior art, would believe the accused design to be the
 same as the patented design. Id. at *17 (citing Egyptian
 Goddess, 543 F.3d at 682).
      Lanard insists that the district court made two errors
 in its infringement analysis. First, Lanard argues that the
 court conducted an element-by-element comparison “in lieu
 of” a comparison of the overall design and appearance of
 the claimed design and the Ja-Ru product. See Appellant
 Br. 38. Second, Lanard argues that the court revived the
 “point of novelty” test that we have rejected. See Appellant
 Br. 43. We disagree with both contentions.
     To be clear, the “ordinary observer” test for design pa-
 tent infringement requires the fact finder to “compar[e]
 similarities in overall designs, not similarities of ornamen-
 tal features in isolation.” Ethicon Endo-Surgery, Inc. v.
 Covidien, Inc., 796 F.3d 1312, 1335 (Fed. Cir. 2015) (citing
 Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1295
 (Fed. Cir. 2010); Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d
 1294, 1303–04 (Fed. Cir. 2010)). But, while the “ordinary
 observer” test is not an element-by-element comparison, it
 also does not ignore the reality that designs can, and often
 do, have both functional and ornamental aspects. See
 Amini Innovation Corp. v. Anthony Cal., Inc., 439 F.3d
 1365, 1372 (Fed. Cir. 2006) (“The trial court is correct to
 factor out the functional aspects of various design
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 LANARD TOYS LIMITED   v. DOLGENCORP LLC                     9



 elements, but that discounting of functional elements must
 not convert the overall infringement test to an element-by-
 element comparison.”). Under the “ordinary observer” test,
 a court must consider the ornamental features and analyze
 how they impact the overall design. See Richardson, 597
 F.3d at 1295 (“We looked to ornamental elements . . . [and
 w]e concluded that both the claimed design and the accused
 designs contained those overall ornamental effects, thereby
 allowing for market confusion.” (citing Crocs, 598 F.3d at
 1303–07)). That is what the district court did in this case.
     In comparing the overall design of the patent with the
 overall design of the Ja-Ra product, the court necessarily
 considered how the ornamental differences in each element
 would impact the ordinary observer’s perception of the
 overall designs. Decision, 2019 WL 1304290, at *15–16.
 Indeed, the court expressly considered Lanard’s argument
 that the differences were “inconsequential” to the overall
 designs, but the court rejected that argument for failure to
 properly place the ornamental aspects of the design in the
 proper context. Id. at *16. The court refocused its analysis
 on the correct context—the impact of the ornamental dif-
 ferences on the overall design—and concluded that “the dif-
 ferences between the patented and accused design take on
 greater significance.” Id. We conclude that the district
 court struck the correct balance of considering the orna-
 mental aspects of the design while remaining focused on
 how an ordinary observer would view the overall design.
 See Richardson, 597 F.3d at 1295 (“[The court] recited the
 significant differences between the ornamental features of
 the two designs but, in determining infringement, it
 mainly focused on whether an ordinary observer would be
 deceived into thinking that any of the [accused] designs
 were the same as [the] patented design.”).
     We also disagree with Lanard’s contention that the
 court reinstated the “point of novelty” test in its infringe-
 ment analysis. See Appellant Br. 43–46. It is true that we
 have rejected the notion that the “point of novelty” test is a
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 10                   LANARD TOYS LIMITED   v. DOLGENCORP LLC



 free-standing test for design patent infringement in which
 the patent owner must prove that the similarities between
 the patented design and the infringing product are at-
 tributable to “the novelty which distinguishes the patented
 device from the prior art.” Egyptian Goddess, 543 F.3d at
 671 (quoting Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d
 1423, 1444 (Fed. Cir. 1984)). But we have never questioned
 the importance of considering the patented design and the
 accused design in the context of the prior art. Indeed, we
 stated unequivocally that:
      [T]he ordinary observer is deemed to view the dif-
      ferences between the patented design and the ac-
      cused product in the context of the prior art. When
      the differences between the claimed and accused
      design are viewed in light of the prior art, the at-
      tention of the hypothetical ordinary observer will
      be drawn to those aspects of the claimed design
      that differ from the prior art. And when the
      claimed design is close to the prior art designs,
      small differences between the accused design and
      the claimed design are likely to be important to the
      eye of the hypothetical ordinary observer.
 Id. at 676.
     Here, as a matter of claim construction, the district
 court undoubtedly considered the points of novelty of the
 patented design over the prior art. Decision, 2019 WL
 1304290, at *12–13. And the court placed those points of
 novelty in context by considering that those points of nov-
 elty would draw “the attention of the ordinary observer.”
 Id. at *15–16. Again, we conclude that the district court
 correctly balanced the need to consider the points of nov-
 elty while remaining focused on how an ordinary observer
 would view the overall design. See Egyptian Goddess, 543
 F.3d at 676.
    Lastly, we deliberately disregard Lanard’s seeming at-
 tempt to side-track the infringement analysis by
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 LANARD TOYS LIMITED   v. DOLGENCORP LLC                   11



 emphasizing similarities between its product—the Lanard
 Chalk Pencil—and the Ja-Ru product. The test for in-
 fringement requires that “an accused design be compared
 to the claimed design, not to a commercial embodiment.”
 Payless, 998 F.2d at 990. To the extent that the Lanard
 Chalk Pencil embodies features that are not claimed in its
 D167 patent, features that are purely functional, or fea-
 tures that are in the prior art, those features are not them-
 selves entitled to patent protection. See id. (“None of those
 cited features, however, is part of the claimed designs and
 thus they may not serve as a valid basis for comparison in
 a design patent infringement analysis.”).
     We ultimately conclude that Lanard’s position is un-
 tenable because it seeks to exclude any chalk holder in the
 shape of a pencil and thus extend the scope of the D167 pa-
 tent far beyond the statutorily protected “new, original and
 ornamental design.” 35 U.S.C. § 171. Lanard’s appellate
 challenge emphasizes the district court’s extensive discus-
 sions of design elements, ornamental aspects, and points of
 novelty, but fails to acknowledge the court’s proper place-
 ment of those discussions in the context of its overall in-
 fringement analysis. The district court’s detailed analysis
 was supportive of its conclusion that an ordinary observer,
 taking into account the prior art, would not believe that the
 accused Ja-Ru product was the same as the patented de-
 sign. See Decision, 2019 WL 1304290, at *17. Thus, we
 hold that the district court correctly granted summary
 judgment of noninfringement.
                              II
     Next, we turn to Lanard’s claim for copyright infringe-
 ment. To establish copyright infringement, a plaintiff
 must prove (1) ownership of a valid copyright and (2) copy-
 ing of constituent elements of the work that are original.
 See Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308,
 1315 (11th Cir. 2010) (quoting Feist Publ’ns, Inc. v. Rural
 Tel. Serv. Co., 499 U.S. 340, 361 (1991)). The district court
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 12                   LANARD TOYS LIMITED   v. DOLGENCORP LLC



 found that, as a matter of law, Lanard cannot show that it
 owns a valid copyright, and alternatively, that Lanard can-
 not show that Appellees infringe any protectable aspect of
 that work. For the following reasons, we agree with the
 district court that Lanard does not own a valid copyright,
 and, therefore, we need not reach the issue of infringement.
     The Copyright Act of 1976 extends copyright protection
 to “original works of authorship fixed in any tangible me-
 dium,” which includes “sculptural works.” 17 U.S.C.
 § 102(a)(5). The Copyright Act defines a “useful article” as
 “an article having an intrinsic utilitarian function that is
 not merely to portray the appearance of the article or con-
 vey information,” and the statute states:
      [T]he design of a useful article, as defined in this
      section, shall be considered a pictorial, graphic, or
      sculptural work only if, and only to the extent that,
      such design incorporates pictorial, graphic, or
      sculptural features that can be identified sepa-
      rately from, and are capable of existing inde-
      pendently of, the utilitarian aspects of the article.
 Id. § 101. Importantly, however, the Copyright Act makes
 clear that “[i]n no case does copyright protection for an orig-
 inal work of authorship extend to any idea.” Id. § 102(b).
     As the district court found, Lanard’s ’458 copyright for
 a “Pencil/Chalk Holder” has an intrinsic utilitarian func-
 tion—storing and holding chalk and facilitating writing or
 drawing—which makes it a useful article under the Copy-
 right Act. See Decision, 2019 WL 1304290, at *21–23; 17
 U.S.C. § 101. Thus, as the district court noted, the perti-
 nent question is whether the copyright incorporates fea-
 tures that are sufficiently “separable” from the utilitarian
 aspects of the article to be eligible for copyright protection.
 Decision, 2019 WL 1304290, at *21 (citing Star Athletica,
 L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1008
 (2017)). In resolving that question, the court found that:
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 LANARD TOYS LIMITED   v. DOLGENCORP LLC                    13



     [T]he pencil design does not merely encase or dis-
     guise the chalk holder, it is the chalk holder. When
     one imagines the pencil design as a separate work
     of sculptural art, one is merely picturing a replica
     of the chalk holder.
 Id. at *22 (emphasis in original). Based on that finding,
 the court concluded that the features of Lanard’s copyright
 “are not capable of ‘existing independently’ as a work of art,
 and therefore, it is not protectable under copyright law.”
 Id. (quoting Star Athletica, 137 S. Ct. at 1011).
     Lanard argues that its ’458 copyright is a cartoonish
 No. 2 pencil design that can be perceived as a sculptural
 work separate from its function as a chalk holder and
 would qualify as a protectable work on its own if imagined
 in another medium separate from its utility as a chalk
 holder. See Appellant Br. 49 (analogizing to the facts at
 issue in Star Athletica). Appellees respond that Lanard
 cannot identify any feature incorporated into the design of
 its copyright that is separate from the utilitarian chalk
 holder and that Lanard is merely attempting to assert cop-
 yright protection over the useful article itself.
      We agree with Appellees. In attempting to identify
 separable features, “the feature cannot itself be a useful ar-
 ticle.” Star Athletica, 137 S. Ct. at 1010; see also Progres-
 sive Lighting, Inc. v. Lowe’s Home Ctrs., Inc., 549 F. App’x
 913, 921 (11th Cir. 2013) (“[A]n entire useful article cannot
 receive copyright protection, no matter how many super-
 fluous, aesthetic individual components it has.”). Here,
 Lanard’s ’458 copyright is for the chalk holder itself, and
 Lanard’s arguments in the district court and in this appeal
 merely confirm that it seeks protection for the dimensions
 and shape of the useful article itself. Because the chalk
 holder itself is not copyright protectable, Lanard cannot
 demonstrate that it holds a valid copyright.
    Furthermore, the ’458 copyright shows images that ap-
 pear to be a pencil with the words “Chalk Pencil” on it, and
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 14                  LANARD TOYS LIMITED   v. DOLGENCORP LLC



 the copyright is titled “Pencil/Chalk Holder.” Based on
 that limited information, in conjunction with its arguments
 in the district court and this appeal, Lanard is essentially
 seeking to assert protection over any and all expressions of
 the idea of a pencil-shaped chalk holder. But copyright pro-
 tection does not extend to an “idea.” 17 U.S.C. § 102(b).
 For this additional reason, we conclude as a matter of law
 that Lanard does not own a valid copyright for a pencil-
 shaped chalk holder. Thus, we hold that the district court
 correctly granted summary judgment in favor of Appellees
 on Lanard’s claim for copyright infringement.
                              III
      We next turn to Lanard’s claim for trade dress infringe-
 ment. To prevail on a claim for trade dress infringement,
 a plaintiff must prove three things: (1) that the trade dress
 of two products is confusingly similar; (2) that the features
 of the trade dress are primarily non-functional; and (3) that
 the trade dress has acquired secondary meaning. See John
 H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980–
 81 (11th Cir. 1983) (collecting cases). “To establish second-
 ary meaning the plaintiff must show that the primary sig-
 nificance of the product in the minds of the consuming
 public is not the product itself but the producer.” Brooks
 Shoe Mfg. Co. v. Suave Shoe Corp., 716 F.2d 854, 857 n.7
 (11th Cir. 1983) (quoting Vision Ctr. v. Opticks, Inc., 596
 F.2d 111, 118 (5th Cir. 1979), cert. denied, 444 U.S. 1016
 (1980)). The district court found that Lanard cannot pro-
 vide sufficient evidence that the Lanard Chalk Pencil has
 acquired secondary meaning.
      Lanard argues that the district court erred by limiting
 its secondary meaning analysis to end-users of the Lanard
 Chalk Pencil even though Lanard’s actual customers are
 wholesalers and retail stores to whom Lanard’s sales team
 promotes its products through direct communications,
 presentations, and pitches. Lanard further contends that
 it sold a large number of units of the Lanard Chalk Pencil,
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 LANARD TOYS LIMITED   v. DOLGENCORP LLC                     15



 the only pencil-shaped chalk holder on the market, which
 should at least be sufficient to create a triable issue of fact
 regarding whether the wholesalers and retail stores asso-
 ciated the product—the Lanard Chalk Pencil—with its pro-
 ducer—Lanard.
      Appellees respond that Lanard relied exclusively on
 Ja-Ru’s copying and its own sales as evidence of secondary
 meaning, and the court found that the evidence “woefully
 fails” to show secondary meaning. Appellees insist that
 Lanard never presented evidence or argument that distin-
 guished between end-users versus wholesalers and retail
 stores, nor evidence of efforts to promote its product
 through its sales force.
     We agree with the district court that, based on the evi-
 dence in the record, no reasonable trier of fact could reach
 the conclusion that the Lanard Chalk Pencil has acquired
 secondary meaning. On appeal, Lanard merely empha-
 sizes that it sold a lot of units of the Lanard Chalk Pencil
 through direct marketing to wholesalers and retail stores,
 but Lanard cites no evidence as to how those customers
 view its Lanard Chalk Pencil product. Essentially, regard-
 less of the identity of Lanard’s customers, Lanard has not
 identified evidence with which it could satisfy its burden to
 prove at trial that, when customers see the Lanard Chalk
 Pencil, their minds jump to the producer of the product ra-
 ther than the product itself. See Brooks Shoe, 716 F.2d at
 857 n.7. We conclude that, on this record, the district court
 correctly granted summary judgment in favor of Appellees
 on Lanard’s claim for trade dress infringement.
                               IV
     Finally, we address Lanard’s claims for statutory and
 common law unfair competition under state and federal
 law. The district court found that the unfair competition
 claims fail because they are based entirely on Lanard’s in-
 fringement claims. On appeal, Lanard does not challenge
 that finding. See Appellant Br. 64–65 (arguing only that
Case: 19-1781   Document: 61    Page: 16     Filed: 05/14/2020




 16                 LANARD TOYS LIMITED   v. DOLGENCORP LLC



 “since none of Lanard’s other claims should fail on sum-
 mary judgment, the district court’s grant of summary judg-
 ment . . . on the unfair competition claim should be
 reversed”). Thus, because we find that the district court
 correctly granted summary judgment in favor of Appellees
 on Lanard’s other claims, we hold that the court also cor-
 rectly granted summary judgment on the unfair competi-
 tion claims.
                       CONCLUSION
      We have considered the parties’ remaining arguments,
 but we find them unpersuasive. We conclude that the dis-
 trict court correctly granted summary judgment in favor of
 Appellees on Lanard’s claims for design patent infringe-
 ment, copyright infringement, trade dress infringement,
 and unfair competition. Accordingly, the judgment of the
 district court is affirmed.
                       AFFIRMED
