IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30121
Summary Calendar
JOHNNY L. DUNCAN,
Plaintiff-Appellant,
versus
BOB WOOD; NIKE-UNITED STATES OF AMERICA;
PHIL KNIGHT; NIKE INC.; WIEDEN & KENNEDY LLC,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-3777-S
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November 19, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Johnny L. Duncan appeals from the summary judgment dismissal
of his suit alleging that the defendants' advertising campaign
using variations of the slogan "I Can" violated his copyright in a
poem that he created in 1986 entitled "I Can." After a de novo
review, we affirm.
The defendants argue that our review is limited to determining
whether the district court abused its discretion in denying
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-30121
-2-
Duncan's purported Rule 60(b) motion. Because Duncan's motion was
filed within ten days of the district court's summary judgment, it
is treated as a Rule 59(e) motion. See Harcon Barge Co. v. D & G
Boat Rentals, Inc., 784 F.2d 665, 670 (5th Cir. 1986)(en banc).
Although Duncan's notice of appeal designated only the denial of
the post-judgment motion, we overlook such technical errors or
mistakes and infer that Duncan intended to appeal the adverse
underlying judgment. See Lockett v. Anderson, 230 F.3d 695, 700
(5th Cir. 2000).
Duncan argues that his summary judgment evidence demonstrated
that the defendants had access to his poem "I Can" because the poem
appeared for several years in a calendar, a book, and a poetry
anthology, all of which Duncan asserts were distributed throughout
the country. He also asserts that his poem and the defendants'
advertisements were substantially similar. We conclude from a
review of the record that Duncan has failed to show more than a
bare possibility that the defendants had access to his work and
that the poem and advertisements are not substantially similar.
See Peel & Co., Inc. v. The Rug Market, 238 F.3d 391, 394 (5th Cir.
2001); Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111,
113 (5th Cir. 1978).
AFFIRMED.