                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-1131



RENAISSANCE GREETING CARDS, INCORPORATED,

                                              Plaintiff - Appellant,

          versus


DOLLAR TREE STORES, INCORPORATED,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (1:05-cv-00341-TSE)


Argued:   November 30, 2006                 Decided:   March 30, 2007


Before WIDENER and WILKINSON, Circuit Judges, and David A. FABER,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Faber wrote the opinion, in
which Judge Widener and Judge Wilkinson joined.


ARGUED: Michael Steven Culver, MILLEN, WHITE, ZELANO & BRANIGAN,
P.C., Arlington, Virginia, for Appellant.      Beth Hirsch Berman,
WILLIAMS, MULLEN, HOFHEIMER & NUSBAUM, P.C., Norfolk, Virginia, for
Appellee. ON BRIEF: Adam Casagrande, WILLIAMS, MULLEN, HOFHEIMER
& NUSBAUM, P.C., Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
FABER, Chief District Judge:

     Renaissance Greeting Cards, Inc., appeals the district court’s

grant of summary judgment to Dollar Tree Stores, Inc., and the

court’s determination of an evidentiary issue under Federal Rule of

Evidence 408.    For the following reasons, we affirm with regard to

both issues.



                                      I.

     In connection with its greeting cards business, appellant

Renaissance Greeting Cards, Inc. (“RGC”), owns three registered

trademarks containing the words “Renaissance” and “Renaissance

Greeting Cards.” Although the marks were registered in 1992, 1996,

and 2003, respectively, at least one of these marks has been in

continuous use by RGC or its predecessors since 1977.         The parties

do not dispute that RGC’s “Renaissance” mark is incontestible

pursuant to 15 U.S.C. §§ 1065 and 1115(b).

     Although RGC operates one retail outlet store in Maine, the

vast majority of RGC’s sales are made on a wholesale basis to

assorted retailers and to florists affiliated with RGC’s parent

company,     Florists’   Transworld    Delivery,   Inc.   (“FTD”).   Not

surprisingly, RGC’s advertising expenditures, which have averaged

$358,000.00 in recent years, are targeted mostly at these wholesale

customers.      With recent annual sales averaging twelve million

dollars, RGC claims approximately 0.2% of the greeting cards


                                      2
market.    Although RGC’s products at one time included a line of

gift bags, gift wrap, bows, and ribbon, RGC abandoned this line in

1990, and has since confined itself to the sale of greeting cards.

     Appellee Dollar Tree Stores, Inc. (“DTS”), owns and operates

approximately 2,800 discount retail stores nationwide, with recent

annual sales totaling in excess of $3 billion.   Since 1993, DTS has

sold a line of gift bags bearing a “Renaissance” or “Renaissance

Gift Bags” mark.   In 2002, it expanded this line to include gift

wrap, boxes, bows, ribbon, and tissue paper. DTS estimates that it

has sold somewhere between 250 million and 500 million units of

these products since 1995.       DTS also sells a line of greeting

cards, but these cards, which are produced by American Greetings

Corporation, are sold under the trademark “Tender Thoughts.”

     At the time it selected its “Renaissance” marks, DTS was

unaware of RGC’s trademarks.       Indeed, DTS did not conduct a

trademark search or consult counsel with regard to its use of the

mark until 2003, when it discovered that the “Renaissance” mark was

widely used by many companies.    As a result of this discovery, DTS

eventually began marketing its line of gift products under the mark

“Voila.”    The older “Renaissance” gift bags, however, remained

available for purchase in some of DTS’s stores as late as July

2005.

     When RGC discovered DTS’s use of the mark in 2003, it sent a

letter to Betta Products, Inc., the company it believed to have


                                   3
produced the bags.     Betta Products directed RGC to DTS, and in

December 2003, counsel for RGC sent a letter to DTS seeking to

discuss the issue.    When this and two subsequent letters produced

no response, RGC filed suit on March 29, 2005, alleging (I)

infringement of a federally registered trademark under 15 U.S.C. §

1114(1); (ii) trademark infringement and a false designation of

origin under 15 U.S.C. § 1125(a); and (iii) common law infringement

and unfair competition under Virginia state law.        On December 19,

2005, the district court granted summary judgment in favor of DTS,

the parties having previously agreed to a bench trial.

       RGC filed a timely notice of appeal with regard to two issues:

(1) the district court’s determination that no likelihood of

confusion existed between RGC’s and DTS’s marks; and (2) the

district court’s decision to strike portions of the complaint and

to preclude certain discovery pursuant to Federal Rule of Evidence

408.    We have jurisdiction pursuant to 15 U.S.C. § 1121(a) and 28

U.S.C. § 1291.



                                   II.

       We review de novo the legal determinations made by a district

court in granting summary judgment.        See Lone Star Steakhouse &

Saloon v. Alpha of Va., Inc., 43 F.3d 922, 928 (4th Cir. 1995).        A

district    court’s   likelihood   of    confusion   inquiry,   however,

necessarily involves factual determinations. Int’l Bancorp, LLC v.


                                   4
Societe Des Bains De Mer Et Du Cercle Des Etrangers a Monaco, 329

F.3d 359, 362 (4th Cir. 2003).        Where, as here, the court is to be

the ultimate finder of fact, the entire record is before the court

at the summary judgment stage,1 and only the inferences to be drawn

from the underlying facts – as opposed to the facts, themselves –

are in dispute, a court may properly proceed to final judgment.

See id.

     It makes little sense to forbid the judge from drawing
     inferences from the evidence submitted on summary
     judgment when that same judge will act as the trier of
     fact, unless those inferences involve issues of witness
     credibility or disputed material facts. If a trial on
     the merits will not enhance the court’s ability to draw
     inferences and conclusions, then a district judge
     properly should draw his inferences without resort to the
     expense of trial.

Id. at 362 (quoting Matter of Placid Oil Co., 932 F.2d 394, 398

(5th Cir. 1991)(internal quotations and citations omitted)).           In

such circumstances, we review the district court’s findings for

clear error.       Int’l Bancorp, 329 F.3d at 362; see also Petro

Stopping Centers, L.P. v. James River Petroleum, Inc., 130 F.3d 88,

91-92     (4th   Cir.   1997)(“This   circuit   reviews   district   court

determinations regarding likelihood of confusion under a clearly

erroneous standard.”).      Under this standard, the district court’s

findings may not be disturbed unless there is no evidence in the


     1
      “The Court: ‘All right. I don’t need anything more. After
that, the case is ready for disposition, isn’t it, Mr. Hanes
[Attorney for Dollar Tree], Mr. Culver [Attorney for RGC].’
Attorney for Dollar Tree: ‘Yes.’ Attorney for RGC: ‘Yes.’” (J.A.
at 355.)

                                      5
record     to    support    them,    or    when,    having     reviewed   the    record

ourselves, “we are left with a definite and firm conviction that a

mistake has been committed.”              Petro Stopping, 130 F.3d at 92.             In

no case, however, will this standard permit a district court’s

decision to stand where the court incorrectly applied the law.

Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1526 (4th Cir. 1984).



                                            A.

      Actions      for     trademark      infringement       require   proof     of   two

elements: (1) that the plaintiff has a valid mark, and (2) that the

similarity of the defendant’s mark to the plaintiff’s creates a

“likelihood of confusion” in the marketplace.                   See Perini Corp. v.

Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990); 15 U.S.C.

§   1114(1).        Because    the     parties     do    not   dispute    that    RGC’s

“Renaissance” mark is incontestible pursuant to 15 U.S.C. §§ 1065

and 1115(b), the district court properly limited its inquiry to the

“likelihood of confusion” element.2

      Courts       consider    seven      factors       in   evaluating   whether      a

competing mark creates a likelihood of confusion:

      1)        The strength or distinctiveness of the mark;
      2)        The similarity of the two marks;



      2
      Because the “likelihood of confusion” test governs not only
suits under the Lanham Act, but also Virginia common law actions
for infringement and unfair competition, we analyze appellant’s
causes of action simultaneously. Lamparello v. Falwell, 420 F.3d
309, 312 n.1 (4th Cir. 2005).

                                            6
     3)   The similarity of the goods or services the marks
          identify;
     4)   The similarity of the facilities the two parties
          use in their businesses;
     5)   The similarity of the advertising used by the two
          parties;
     6)   The defendant’s intent;
     7)   Actual confusion.

Pizzeria Uno, 747 F.2d at 1527.   These factors will not be of equal

relevance in every case.    Lone Star, 43 F.3d at 933.      Indeed,

“[c]ertain factors may not be germane to every situation,” and

certain factors other than those listed above may be relevant to

the “likelihood of confusion” analysis in certain cases.   Sara Lee

Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463 (4th Cir. 1996).   RGC

contends that the district court misapplied these factors in

certain respects to such an extent that it committed legal error.

We will consider each element in turn.

                                  1.

     RGC contends that the district court improperly weighed the

strength of the “Renaissance” mark, and that it placed too much

emphasis on the “strength of the mark” element in analyzing the

likelihood of confusion.   The district court began its evaluation

of the mark’s strength by noting our statement in Pizzeria Uno that

the “first and paramount factor under this set of factors is the

distinctiveness or strength of the two marks.”    Pizzeria Uno, 747

F.2d at 1527.   It then proceeded to apply the two-factor test set

forth in CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263

(4th Cir. 2006).    Under that test, the court considers (1) the

                                  7
conceptual strength of the mark, and (2) the commercial strength of

the mark.   Id. at 269.

     A mark’s conceptual strength is determined in part by its

placement into one of four categories of distinctiveness: (1)

generic, (2) descriptive, (3) suggestive, and (4) arbitrary or

fanciful.      Pizzeria   Uno,   747   F.2d    at     1527.     Suggestive    and

arbitrary marks are deemed strong and presumptively valid, whereas

generic and descriptive marks are deemed weak, and require proof of

secondary meaning within the market in order to receive trademark

protection.    Id.   After considerable analysis, the district court

concluded that RGC’s “Renaissance” mark is suggestive, because it

“does not describe any particular characteristic of RGC’s greeting

cards, but “requires some imagination to connect it with the

goods.’” (J.A. at 353 (quoting Retail Servs., Inc. v. Freebies

Publ’g, 364 F.3d 535, 539 (4th Cir. 2004).)

     This categorization does not end a court’s evaluation of a

mark’s conceptual strength, however.           A court must also consider

other   registrations     of   the   mark,   because     “the   strength     of   a

commonly-used    mark     decreases    as     the    number     of   third-party

registrations increases.         Pizzeria Uno, 747 F.2d at 1531.              The

district court therefore considered evidence of 465 federal and 203

state trademark registrations or pending applications, all for

marks using the word “Renaissance.”                 (J.A. at 358.)      It then

specifically    considered      evidence     that     twenty-three     of   these


                                       8
registrations, including RGC’s, are for marks that fall in the same

class of paper products as RGC’s, PTO International Class 16.3

(Id. at 358, 344.)    As a result, the court concluded that this

widespread usage of the word “Renaissance” in other trademarks

significantly diminished any distinctiveness inherent in RGC’s

marks.

     Citing CareFirst, RGC asserts that the district court erred in

considering evidence that “Renaissance” is used in products outside

RGC’s class of paper goods.    CareFirst does not support such an

argument.   In that case, we explained that “the frequency of prior

use of [a mark’s text] in other marks, particularly in the same

field of merchandise or service,’ illustrates the mark’s lack of

conceptual strength.” CareFirst, 434 F.3d at 270 (quoting Pizzeria

Uno, 747 F.2d at 1530-31).    Because in that case there was ample

use of “CareFirst” and similar marks in the health care industry

alone, it was unnecessary to consider use of the mark in unrelated


     3
      Under the regulations of the Patent and Trademark Office,
Class 16 includes the following:

     Paper, cardboard and goods made from these materials, not
     included in other classes; printed matter; bookbinding
     material;   photographs;    stationery;   adhesives   for
     stationery or household purposes; artists’ materials;
     paint brushes; typewriters and office requisites (except
     furniture); instructional and teaching material (except
     apparatus); plastic materials for packaging (not included
     in other classes); playing cards; printers’ type;
     printing blocks.

International Schedule of Classes of Goods and Services, 37 C.F.R.
§ 6.1(16).

                                 9
industries. As the above passage makes clear, however, evidence of

third-party use of a mark in unrelated markets – although not as

persuasive as use within the same product class – indicates a

mark’s lack of conceptual strength.4

       The second step in the “strength of the mark” analysis is to

consider the mark’s commercial strength, a concept similar to the

“secondary meaning” inquiry considered in evaluating a mark’s

validity.      CareFirst, 434 F.3d at 269 n.3.            While third-party use

of the mark is relevant at this stage, as well, the court also

considers      a   number   of   other         factors,   such   as   advertising

expenditures, consumer awareness of the source of the mark, market

share, and unsolicited media coverage.                See Perini, 915 F.2d at

125.       The district court faithfully considered these and other

factors, noting RGC’s market share of less than one percent of the

greeting cards market, its average annual advertising expenditures

of less than $360,000.00, and the lack of both independent media

coverage      of   the   business   and    survey     evidence    indicating   an

association between RGC’s mark and its product.                  (J.A. at 361.)

Because of the ample evidence supporting the district court’s

decision on this point, we find no error in the court’s conclusion



       4
      RGC further argues that the district court ought not to have
discounted its attempts to police the use of its mark by third-
parties. The district court’s opinion makes evident that it gave
due consideration to RGC’s efforts in this regard, but was
unimpressed with the “mixed results” RGC achieved. (J.A. at 359
n.15.)

                                          10
that RGC possesses a weak mark “such that its ability to identify

the source of products does not extend beyond the greeting card

market.”   (Id. at 361-62.)   See Arrow Fastener Co., Inc. v. Stanley

Works, 59 F.3d 384, 394 (2d Cir. 1995).5

                                  2.

     The second factor to be considered in the “likelihood of

confusion” analysis is the similarity of the marks in question. In

order for this factor to weigh in favor of the plaintiff, the marks

need not be identical; rather, they must only be “sufficiently

similar in appearance, with greater weight given to the dominant or

salient portions of the marks.”     Lone Star, 43 F.3d at 936.   For

purposes of summary judgment, the district court assumed the marks

to be similar in appearance.     This factor thus weighs in favor of

a finding of likelihood of confusion.




     5
      On November 30, 2006, the day this matter was argued, this
court issued its opinion in another trademark dispute, Synergistic
Int’l, LLC v. Korman, 470 F.3d 162 (4th Cir. 2006). Although RGC
argues that Synergistic supports its position with regard to
consideration of third-party registrations of a mark in unrelated
industries, we must conclude otherwise.       In Synergistic, we
concluded that the appellant’s mark was conceptually strong based
in part on the fact that the mark’s dominant word, although
commonly used in other industries, was not commonly used in the
appellant’s industry or related industries.      Id. at 174.    By
contrast, “Renaissance” is used not only by hundreds of businesses
in industries unrelated to RGC’s, but also by numerous businesses
within RGC’s PTO class of products. Furthermore, the appellant’s
mark in Synergistic was found to be commercially strong.        As
described above, that is not the case here.

                                  11
                                 3.

     Next, the court considers the similarity of the goods or

services identified by the marks. With regard to this element, the

products in question need not be identical or in direct competition

with each other.    Because confusion may arise even where products

are merely “related,” the court is to consider “whether the public

is likely to attribute the products and services to a single

source.”     CAE, Inc. v. Clean Air Eng’g, Inc., 267 F.3d 660, 679

(4th Cir. 2001).     An important function of this “related goods”

concept is to protect trademark owners’ ability to expand into

associated markets in the future.     Id. at 680-81.

     After considering the manner in which greeting cards and gift

products are marketed in the industry, and the fact that RGC at one

time marketed its own line of gift products, the district court

concluded that the parties’ products constituted related goods.

The court then properly observed that, although the fact that goods

are related weighs in favor of a finding of infringement, the

similarity of the goods, alone, is not dispositive as to the

likelihood    of   confusion.    (J.A.   at   364-65   (citing   Arrow

Distilleries, Inc. v. Globe Brewing Co., 117 F.2d 347, 351 (4th

Cir. 1941); Petro Stopping, 130 F.3d at 95; 4 J. Thomas McCarthy,

McCarthy on Trademarks and Unfair Competition § 24:62 (4th ed.

2006).)




                                 12
                                    4.

     The fourth factor to be considered in the “likelihood of

confusion” analysis is the similarity of the facilities used by the

parties in their businesses. As McCarthy explains, the court is to

consider the class of consumers purchasing the products, and the

context in which they make their purchases.        McCarthy, supra, §

24:51.   Although noting that DTS’s products were most likely to be

purchased   by   “value-conscious   consumers,”   the   district   court

concluded that the placement of the products within the stores and

their general retail availability were sufficient to tilt this

factor “very modestly” in favor of a finding of infringement.

(J.A. at 365-66.)    We see no error in this determination.

                                    5.

     We next consider the similarity of the advertising employed by

the parties.     It is undisputed that DTS does not advertise its

greeting cards line in any way. Moreover, although RGC does engage

in some limited advertising, its efforts are targeted almost

entirely at its wholesale customer base.      RGC contends that the

district court erred in interpreting this factor as militating

against infringement, rather than assigning it neutral effect.

(Brief of Appellant at 54 (citing Carnival Brand Seafood Co. v.

Carnival Brands, Inc., 187 F.3d 1307, 1314 (11th Cir. 1999).)        The

district court’s holding on this point was supported by sound

authority, however, and we find no error.    See IDV N. Am., Inc. v.


                                    13
S&M Brands, Inc., 26 F. Supp. 2d 815, 828-29 (E.D. Va. 1998)(citing

Pizzeria Uno, 747 F.2d at 1527; Petro Stopping, 130 F.3d at 95).

                                     6.

     The sixth factor to be considered is the defendant’s intent in

adopting its mark.6    As we explained in Pizzeria Uno, “[i]f there

is intent to confuse the buying public, this is strong evidence

establishing likelihood of confusion, since one intending to profit

from another’s reputation generally attempts to make his signs,

advertisements, etc., to resemble the other’s so as deliberately to

induce confusion.”     Pizzeria Uno, 747 F.2d at 1535.

     RGC contends that DTS exhibited bad faith by failing to

conduct a trademark search or to obtain advice of counsel before

adopting the “Renaissance” mark for use on its gift products, and

by continuing to use the mark after being contacted by RGC.           RGC’s

first argument necessarily fails, because, as the district court

reasoned, “[a]t most, the failure to conduct a search is probative

of Dollar Tree’s carelessness, which even if true, has little

bearing on the likelihood that its allegedly infringing mark will

confuse the public.”         (J.A. at 367 (citing McCarthy, supra, §

23:109).) Moreover, DTS was justified in continuing its use of the

“Renaissance”   mark   if,    as   the    district   court   concluded,   DTS


     6
      To the extent appellant argues that the district court’s
decision to strike portions of the complaint and to preclude
certain discovery are relevant to this factor, the court notes that
the district court’s ruling on those points is affirmed in Section
III below.

                                     14
believed RGC’s mark to be too weak to prevent DTS’s use of the mark

on its gift products. See McCarthy, supra, § 23:120. Accordingly,

the district court committed no error in concluding that the intent

factor militated against a finding of infringement.

                                    7.

     Finally,   the   “likelihood   of   confusion”   analysis   requires

consideration of instances of actual confusion among consumers.

RGC produced evidence of four instances of confusion, one involving

a shop owner, two involving shop managers, and one involving an

independent sales representative.        The district court found that

this small number of cases, none of which demonstrated confusion

among the actual consumer public, weighed against RGC’s position,

rather than in favor.    In so holding, the district court took into

account the large volume of sales from which RGC’s instances of

confusion were taken, as well as RGC’s unsuccessful efforts to

uncover additional examples of actual confusion.

     The court also appropriately considered our statement in Petro

Stopping that, “[a]t worst, [a] company’s failure to uncover more

than a few instances of actual confusion creates a ‘presumption

against likelihood of confusion in the future.’”        Petro Stopping,

130 F.3d at 95 (quoting Amstar Corp. v. Domino’s Pizza, Inc., 615

F.2d 252, 263 (5th Cir. 1980)).      In Petro Stopping, we determined

that the appellant’s evidence of actual confusion, consisting of

only a few instances out of more than $2 billion in sales, was “at


                                    15
best de minimis.”    Petro Stopping, 130 F.3d at 95.             We see no error

in the district court reaching the same conclusion in the instant

case.



                                        B.

      Having determined that the district court committed no clear

error in assessing each of the Pizzeria Uno factors, we turn to

RGC’s contention that the court erred in weighing these factors

against each other.       Specifically, appellant argues that the court

placed excessive significance on the strength of the mark.                 This

argument is similarly unavailing.                As previously noted, these

factors will be of varying relevance in every case.               Lone Star, 43

F.3d at 933.    Nonetheless, where only three of the seven Pizzeria

Uno   factors   weighed    in   favor   of   a    finding   of   likelihood   of

confusion, we are unable to conclude that the district court

committed clear error in finding no infringement.                Ample evidence

supported the court’s decision, and we will not disturb it.



                                    III.

      The second issue RGC raises on appeal is the district court’s

exclusion, pursuant to Federal Rule of Evidence 408, of evidence

relating the parties’ settlement negotiations.7             Specifically, the


      7
      After a review of the record, we believe RGC made clear to
the district court that it wished to introduce the disputed
evidence to show DTS’s intent for purposes of the “likelihood of

                                        16
district court ordered such content stricken from two paragraphs of

RGC’s original complaint, and subsequently upheld a protective

order entered by the magistrate judge precluding witness testimony

on the issue.    We review both decisions for an abuse of discretion.

See Seay v. TVA, 339 F.3d 454, 480 (6th Cir. 2003)(“We review the

decision to grant or deny a motion to strike for an abuse of

discretion,     and   decisions    that      are     reasonable,    that    is,   not

arbitrary, will not be overturned.”); Neighbors of Cuddy Mountain

v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)(reviewing ruling

on motion to strike under Fed. R. Civ. P. 12(f) for abuse of

discretion); Stanbury Law Firm, P.A. v. IRS, 221 F.3d 1059, 1063

(8th Cir. 2000)(same); M & M Med. Supplies & Serv., Inc. v.

Pleasant   Valley     Hosp.,    Inc.,     981      F.2d   160,     163    (4th    Cir.

1992)(protective      order    entered       under    Fed.   R.    Civ.    P.    26(c)

reviewable for abuse of discretion).

     Paragraphs 16 and 17 of RGC’s original complaint detailed

certain communications between the parties’ attorneys made during

settlement negotiations.          (J.A. at 14.)           In its answer to the

complaint, DTS moved to strike these paragraphs pursuant to Federal

Rule of Evidence 408, which provides as follows:

     Evidence of (1) furnishing or offering or promising to
     furnish, or (2) accepting or offering or promising to
     accept, a valuable consideration in compromising or


confusion” analysis. We are thus unpersuaded by DTS’s argument
that RGC waived this issue below. (See Brief of Appellee at 32-
34.)

                                        17
     attempting to compromise a claim which was disputed as to
     either validity or amount, is not admissible to prove
     liability for or invalidity of the claim or its amount.
     Evidence of conduct or statements made in compromise
     negotiations is likewise not admissible. This rule does
     not require the exclusion of any evidence otherwise
     discoverable merely because it is presented in the course
     of compromise negotiations.     This rule also does not
     require exclusion when the evidence is offered for
     another purpose, such as proving bias or prejudice of a
     witness, negativing a contention of undue delay, or
     proving an effort to obstruct a criminal investigation or
     prosecution.

Fed. R. Evid. 408. RGC contended that the passages, which included

statements   by   counsel   for   DTS    as   to   how   many   units   of   the

“Renaissance” gift products remained in stock, were admissible as

an exception to Rule 408 to show bad faith or willfulness.

     The court took up the issue at a motions hearing on June 3,

2005, discussing the matter at length.              The transcript of that

hearing makes evident that the court was aware of the law governing

motions to strike under Rule 12(f), and that such motions are to be

granted infrequently.       (J.A. at 92.)      See Stanbury, 221 F.3d at

1063.   It is equally clear that the court felt RGC’s proffered

exceptions to Rule 408 were impermissible under the rule, and that

it did not consider the disputed information to be probative.                 As

a result, the district court granted the motion to strike in part

and directed RGC to file an amended complaint.                  In doing so,

however, the court narrowly tailored the portions of Paragraphs 16

and 17 to be excluded, and assured counsel for RGC that it would




                                    18
reconsider the matter if an exception to Rule 408 were later

revealed.

      RGC made its argument on the basis of rather weak authority.

It was able to cite no cases from this circuit in support of its

position.      Furthermore, one of its chief cases, Itron, Inc. v.

Benghiat, No. 99-501, 2003 U.S. Dist. LEXIS 15039 (D. Minn. Aug.

29, 2003), is an unpublished district court opinion from the

District      of   Minnesota,    and       is        therefore    of   questionable

precedential value.          Another case on which it relies actually

militates against admission of the disputed paragraphs.                       Stern’s

Miracle-Gro Prods., Inc. v. Shark Prods., Inc., 823 F. Supp. 1077

(S.D.N.Y. 1993).      In Stern’s, the court considered statements made

during      settlement   negotiations          for    purposes    of   showing    the

defendant’s intent.      The Stern’s court only considered statements

made by the plaintiff, however, and only to the extent they proved

notice of the plaintiff’s objection to the defendant’s mark.                      Id.

at   1088    n.6   (adding    that    statements         made    during   settlement

negotiations are clearly inadmissible under Rule 408 where they may

be   considered     admissions       as   to    the     merits    of   the   action).

Similarly, the district court here informed RGC that it would

consider statements made by RGC to DTS.                 (J.A. at 94-96.)      Because

the district court’s ruling on this point was reasonable and not

overreaching, we find no abuse of discretion.




                                          19
       The protective order arose from a notice of deposition issued

by RGC that included a demand for the production of a witness to

testify to “all factual representations made to plaintiff’s counsel

during negotiations with defendant’s counsel in 2004 involving the

mark RENAISSANCE . . . .”           (J.A. at 189.)    Upon motion by DTS, the

magistrate judge to whom the motion was referred concluded that,

although evidence of settlement negotiations may be discoverable

under some circumstances, RGC had not shown why the settlement

negotiations were relevant to its “claims or defenses.”                (J.A. at

184.) Moreover, the magistrate judge observed that RGC did not say

what   fact    it    wished    to   discover   through     inquiry   about    the

negotiations.        (Id.)    When RGC objected to the magistrate judge’s

order, the district court considered the issue at a subsequent

motions hearing.        Concluding, as it had at the prior hearing on

DTS’s motion to strike, that the disputed information was not

probative and did not meet an exception to Rule 408, the district

court overruled RGC’s objections to the order.                     The district

court’s decision in this regard was supported by sound policy

considerations. See Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d

652,   654    (4th   Cir.     1988)(“The   public    policy   of   favoring   and

encouraging     settlement      makes   necessary    the   inadmissibility     of

settlement negotiations in order to foster frank discussions.”).

Accordingly, we find no abuse of discretion.




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                               IV.

     For the foregoing reasons, we affirm the district court’s

rulings with regard to Federal Rule of Evidence 408, and its grant

of summary judgment to Dollar Tree Stores.

                                                         AFFIRMED




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