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DESOKY v. LAZAR

April 19, 1995

MOHAMED DESOKY, etc., Plaintiff,
v.
ALLAN LAZAR, Defendant.



The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 This matter is brought before the Court on defendant's motion for summary judgment. For the reasons set forth herein, defendant's motion will granted and the Court will dismiss with prejudice plaintiff's trade dress infringement claims and dismiss without prejudice the plaintiff's pendent state law claims for breach of contract.

 BACKGROUND

 Plaintiff Mohamed Desoky is the president of Amitco Inc., which does business as Medical Weight Management Inc. Plaintiff markets a nutritional weight loss supplement, a powder drink mix that is ingested in place of solid food. Plaintiff uses the brand name Nutri-Lene on its product.

 Defendant Allan Lazar is a physician and former owner of Medical Weight Management Inc. In 1990, Dr. Lazar sold Medical Weight Management Inc. to Mr. Desoky and assigned to Mr. Desoky the rights to the Nutri-Lene trademark. Beginning in March 1991 Mr. Lazar began purchasing privately labelled nutritional weight loss supplements. Mr. Lazar designed labels for these products using the brand name "Professional Weight Control." Mr. Lazar sells these products to his obese patients to aid in weight loss.

 There are numerous differences in the product dress. The most prominent feature on plaintiff's product is the name "Nutri-Lene," which is accompanied by a medical symbol. The most prominent feature on defendant's product is the name "Professional Weight Control." The graphic designs on the two products are dissimilar. The color of the labels is different. The size and shape of the lettering on the products is different. The words used on each label are different.

 DISCUSSION

 I. Summary Judgment

 A. Summary Judgment Standard

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See, Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute involving a material fact is "genuine" only "if the evidence is such that a reasonable jury would return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The Supreme Court also observed that "only disputes over facts that might affect the outcome of the suit under governing law will properly preclude an entry of summary judgment." Id. See also, Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981) (role of district court is to determine whether genuine issue of material fact exists).

 Furthermore, when considering a summary judgment motion, this Court must view all evidence submitted in a light most favorable to the party opposing the motion. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1987); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). Although the summary judgment hurdle is a difficult one to meet, it is by no means insurmountable. "Where the evidence is so one-sided that it leaves no room for any reasonable differences of opinion as to any material fact" this Court will grant summary judgment. Tunis Bros. Co., Inc. v. Ford Motor Co., 763 F.2d 1482, 1489 (3d Cir. 1985).

 Accordingly, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), the Supreme Court concluded that "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way ...


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