Full opinion text
ORDER ERICKSON, United States Magistrate Judge. I. Introduction This matter came before the undersigned United States Magistrate Judge, pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 636(c), upon the Motions of the Defendant, Henry’s Foods, Inc. (“Henry’s”), to Enforce Settlement, and for partial Summary Judgment. A Hearing on the Motion to Enforce Settlement was conducted on February 6, 2003, and a Hearing on the Motion for partial Summary Judgment was conducted on June 12, 2003. At both Hearings, the Plaintiff, Goddard, Inc., d/b/a Freshway Food Systems, (“Fresh-way”), appeared by Mark J. Arndt, Esq., and Henry’s appeared by Amy J. Doll, Esq. For reasons which follow, we deny Henry’s Motion to Enforce Settlement, we grant Henry’s Motion for partial Summary Judgment, and we decline Henry’s request that we dismiss, without prejudice, Fresh-way’s remaining State law claims, as an exercise of our supplemental jurisdiction. II. Factual and Procedural History. Since 1992, Freshway has operated a deli-style food service, through which it sells items such as deli-style sandwiches, salads, pizza, and chicken. See, Second Affidavit of Joan Goddard in Support of Motion for Preliminary Injunction, at ¶¶ 7-8 (“Goddard Aff.”). The food goods are packaged, and sold, under the Federal service mark “Freshway Food Systems.” Id. at ¶ 8. Freshway currently maintains ninety-two food centers, which are primarily located in convenience stores throughout the upper Midwest, including twenty-three such stores in Minnesota. Id. at ¶¶ 9-10. Fresh-way franchises are purchased by local owners, most of whom are also convenience store owners and operators. Id. at ¶ 11. Prior to May of 2001, Freshway was a licensor, rather than a franchisor. Transcript of Evidentiary Hearing of May 8, 2002, at 37 (“Tr. 37”). In contrast, Henry’s is a grocery and food service distributor. See, Affidavit of Terry Loeffler, at ¶ 2, Ex. 32 to Henry's Memorandum of Law in Opposition to Freshway’s Motion for a Preliminary Injunction (“Loeffler Aff.”). Since 1928, Henry’s has supplied retail outlets with products, such as cigarettes, candy, paper products, and snacks, most of which were designed for resale. Id. Since 1987, Henry’s has also been supplying its customers — including convenience stores, restaurants, drive-ins and taverns — with frozen, refrigerated, and dry groceries, which can be prepared in-store. Id. In the mid-1990’s, Henry’s considered developing its own food service program for convenience stores but, after determining that the market was saturated, elected to remain in the distribution business. Id. at ¶ 3. In 1997, Henry’s began delivering Freshway’s food products to Freshway’s licensed distributors. See, Goddard Aff, at ¶ 14. As a result of that relationship, Henry’s was provided with copies of Freshway’s operations and sales manuals, and Henry’s personnel attended Fresh-way’s employee training sessions. Id. at ¶ 16. Henry’s maintains that, during the first two years of its relationship with Freshway, it heard frequent complaints about the quality, and service, provided by Freshway, as well as about the high prices of franchising, and branded concepts, generally. See, Loeffler Aff., at ¶ 3. Accordingly, in 1999, after a disagreement broke out between the parties, concerning the scope of their distribution agreement, Henry’s initiated its Deli Max program (“Deli Max”), through which it offered pizzas, submarine and other sandwiches, salads, soups, chicken products, and bakery goods, that owners could prepare in their stores, and sell as retail food service items. Id. A number of Freshway’s licensees changed to the Deli-Max program, at that time. Id. In November of 1999, due, in part, to Henry’s foray into the retail food service business, Freshway terminated its distribution agreement with Henry’s. See, Goddard Aff., at ¶ 17. Between February of 2000, and June of 2001, eight of Fresh-way’s distributors/ licensees terminated their relationship with Freshway, and began operating Deli Max stores. See, Loef-fler Aff., at ¶ 11. All eight of those licensees were convenience stores, which were located in Minnesota, and which had all been serviced by Henry’s, during the period in which Henry’s was operating as Freshway’s food service distributor. This litigation arises out of the Plaintiffs claim that, “[w]ith the exception of changing the name from Freshway to [Deli-Max], the appearance of the eight stores that were converted to [Deli-Max] remained nearly identical to the stores’ appearances when they were Freshway locations.” Goddard Aff, at ¶ 24. Fresh-way also complains that the Deli Max program utilizes the same four main menu items, menus which are substantially similar in look, name, price, and content, nearly identical ingredient labels, nearly identical profit analysis techniques, and substantially similar “Frequent buyer club” punch cards, as does Freshway. Id. at ¶ 25. As a result, arguing that Henry’s purposefully copied the Freshway look, and concept, when it initiated its Deli Max program in the referenced eight stores, Freshway commenced this litigation, asserting claims of false representations and false designation of origin; Federal trademark/service mark infringement; Federal common law service mark infringement; Federal common law unfair competition; deceptive trade practices, in violation of Minnesota State law; State trademark infringement; State common law unfair competition; breach of contract; and conversion. III. Discussion Since a finding, that the parties had reached an enforceable settlement, would obviate any need to consider Henry’s Motion for Summary Judgment, we commence our analysis with a consideration of Henry’s Motion to Enforce Settlement. A. Henry’s Motion to Enforce Settlement. While litigating their respective claims and defenses, the parties engaged in settlement negotiations, which started with Freshway’s offer to settle the case, in a letter dated August 22, 2002, in which counsel for Freshway stated: Pursuant to my phone conversation with you last week, we are forwarding an offer of settlement. Our client is willing to release Henry’s Foods from all claims made in its Complaint, proposed Amended Complaint, and Motion for Preliminary Injunctive Relief currently pending in front of the Court in exchange for $50,000.00. See, Exhibit A attached to Henry’s Memorandum of Law in Support of Motion to Enforce Settlement (“Henry’s Brief’). By letter dated October 4, 2002, defense counsel rejected that offer, on behalf of his client, stating, in part, that Henry’s was “unwilling to offer any money,” and was, instead, planning to move forward with its Motion for Summary Judgment. Exhibit B to Henry’s Brief Through counsel, Henry’s further related that it was planning to include Freshway’s breach of contract claim in its Motion for Summary Judgment, as it did not believe that there was any evidence that its contract, which Freshway claimed was breached, had ever been effected. In response, in a letter dated November 1, 2002, Freshway transmitted, to Henry’s, the documents which it believed supported its breach of contract claim, and related that it was continuing to gather other documents which would “support the value” of that claim, and would forward those documents when they were available. Exhibit C to Henry’s Brief. Freshway represented that a “previous internal audit indicated the value of that contract claim was in excess of $10,000.” Id. In addition, the letter advised that Freshway was “prepared to discuss a dismissal of the trade dress claims upon a resolution to the breach of contract claim,” and asked Henry’s counsel to contact Freshway’s counsel if it had any interest in that proposal. Id. Henry’s responded by letter dated December 9, 2002. See, Exhibit D to Henry’s Brief. Henry’s first commented on the documents that had been produced by Freshway, on the proposed breach of contract issue, and thereafter, addressed the concept of a settlement. As to settlement, the letter stated: My client feels very strongly it has not breached any agreement with Freshway and certainly never shorted Freshway on any rebates. For this reason, my client is unwilling to pay your demand of $10,000 to settle this case but will offer $3,000 to settle this matter along the lines of the enclosed Stipulation. Id. In addition to the proposed Settlement Agreement, Henry’s also appended, to its letter, a Stipulation of Dismissal with Prejudice for Freshway’s review. Freshway responded on December 20, 2002, stating that Henry’s “offer to settle this matter for a payment of $3,000.00 under the terms set forth in [the Defendant’s] December 9, 2002 letter is rejected.” Exhibit E to Henry’s Brief. After discussing a number of on-going discovery disputes between the parties, Freshway returned to the issue of settlement, and stated that it agreed that “it may be in both parties’ interest to resolve this matter without incurring additional legal expenses,” but that, until Freshway received certain other discovery from Henry’s, it could not “place a value on” its claim. Id. Freshway also related that it did not anticipate dismissing its trade dress claim without being fully compensated for the alleged breach of contract. Henry’s response was contained in a letter dated December 30, 2002. While no settlement proposal was made in the letter, Henry’s counsel asked that, after reviewing the contents of that letter, Fresh-way contact counsel, in order to “give one last shot at trying to negotiate something here.” Exhibit F to Henry’s Brief. Fresh-way responded on January 3, 2003, and expressed its desire to settle, stating as follows: [W]e obviously disagree with your sentiment that the breach of contract claim does not amount to “all that much money either.” The ten thousand dollar figure suggested a few months ago was a very conservative estimate and a good-faith attempt at settlement by my client. Until we receive our discovery requests * * * we are unwilling to reduce our demand. Exhibit G to Henry’s Brief. Freshway further advised that it was planning to move forward with its Motion to Compel, in order to obtain the referenced discovery. Apparently, after that letter, counsel for the parties conversed by telephone, and discussed settlement. Thereafter, Henry’s attorney wrote, as follows, to Freshway’s counsel: Pursuant to our telephone conversation of Monday [January 6, 2003], I enclose [this] Settlement Agreement incorporating our commitment of $10,000 to settle this matter. Please review and followup with any drafting concerns. Exhibit H to Henry’s Brief. Attached to the letter was the same Stipulation Agreement that Henry’s had attached to its settlement proposal of December 9, 2002, but modified only to reflect a settlement offer of $10,000.00. See, Exhibit I to Henry’s Brief. Thereafter, on January 16, 2003, the parties’ attorneys again spoke by telephone. A letter, memorializing that conversation, was sent by Freshway, to Henry’s, on January 17, 2003, and stated as follows: Pursuant to our telephone conversation yesterday, please be advised that my client has agreed to accept your settlement proposal of $10,000.00 pursuant to your January 7, 2003 correspondence and proposed Settlement Agreement and Release on the condition that your client agree to one additional term of settlement. We propose the additional term of settlement be incorporated in the Settlement Agreement and Release and state the following: Plaintiff and Defendant agree that for a period of one year (365 days), following the termination, discontinuation or removal for any reason, of a Freshway Food Service System from a particu-. lar location, the same location will not be occupied by a Henry’s Foods, Inc. food service program, including but not limited to, a “Deli Max” franchise. This provision should not be construed to limit Henry’s Foods, Inc. ability to provide wholesale supplies, including food supplies, to any party. Exhibit J to Henry’s Brief. Henry’s rejected that proposal on the ground that the parties had reached a complete settlement on January 6, 2003, such that the Freshway could not add a new, material, term to that agreement. For its part, Freshway maintains that it never accepted the Defendant’s offer to settle at $10,000, since the terms in the proposed Settlement Agreement and Release, which had been drafted by Henry’s were not acceptable to Freshway. Instead, Freshway argues that it rejected that offer, and made a counteroffer, which contained a new, material term — the non-competition clause. Thereafter, Henry’s filed its Motion to Enforce the Settlement which, Henry’s submits, was reached on January 6, 2003. 1. Standard of Review. Under Minnesota law, “[t]o constitute a full and enforceable settlement agreement, all the essential terms must be agreed upon.” Transclean Corp. v. Motorvac Technologies, Inc., supra at *8, citing Ryan v. Ryan, 292 Minn. 52, 193 N.W.2d 295, 297 (1971); Jallen v. Agre, 264 Minn. 369, 119 N.W.2d 739, 743 (1963). Only those terms upon which the settlement hinges are to be considered material terms. See, Sheng v. Starkey Laboratories, Inc., 117 F.3d 1081, 1083 (8th Cir.1997). Accordingly, “[t]he fact that the parties left some details for counsel to work out during later negotiations cannot be used to abrogate an otherwise valid agreement.” Id., citing Worthy v. McKesson Corp., 756 F.2d 1370, 1373 (8th Cir.1985)(per curiam); see also Transclean Corp. v. Motorvac Technologies, Inc., supra at *8; Trnka v. Elanco Prods. Co., 709 F.2d 1223, 1226 n. 2 (8th Cir.1983). The question of whether a particular term is material, “is a legal determination for the Court.” Transclean Corp. v. Motorvac Technologies, Inc., supra at *8. 2. Legal Analysis. Here, since the parties dispute the existence, and terms, of a settlement agreement, they have been afforded an Evidentiary Hearing. See, Sheng v. Starkey Laboratories, Inc., 53 F.3d 192, 194 (8th Cir.1995). Given the Record presented, and the governing principles of Minnesota contract law, we find that no accord was reached by the parties and that, as a consequence, no settlement can be enforced. “A settlement agreement is essentially a contract, subject to contractual rules of interpretation and enforcement.” Ridgecliffe Second Association v. Boutelle, 2001 WL 1182404, at *2 (Minn.App., October 9, 2001), citing Theis v. Theis, 271 Minn. 199, 135 N.W.2d 740, 744 (1965). It is axiomatic that, in order to have a valid contract, there must be an offer, acceptance, and valid consideration, S O Designs USA Inc. v. Rollerblade, Inc., 620 N.W.2d 48, 53 (Minn.App.2000), rev. denied (Minn., February 21, 2001), and also a meeting of the minds as to the material terms of the contract. Minneapolis Cablesystems v. City of Minneapolis, 299 N.W.2d 121, 122 (Minn.1980). “ ‘[Wjhere the offer is clear, definite, and explicit, and leaves nothing open for negotiation, it constitutes an offer, [the] acceptance of which will complete the contract.’ ” Short v. Sun Newspapers, Inc., 300 N.W.2d 781, 786 (Minn.1980), quoting Lefkowitz v. Great Minneapolis Surplus Store, Inc., 251 Minn. 188, 86 N.W.2d 689, 691 (1957). As to that acceptance, the Minnesota Supreme Court “has stated that * * * ‘[a]n acceptance, to be valid and to give rise to a binding contract, must be made in unequivocal and positive terms which comply exactly with the requirements of the offer.’ ” Lund Industries, Inc. v. Wonder Industries, Inc., 2002 WL 1327012, at *4 n. 2 (Minn.App., June 18, 2002), quoting Minar v. Skoog, 235 Minn. 262, 50 N.W.2d 300, 302 (1951). “If the acceptance seeks to vary, add to, or qualify the terms of the offer, it is not positive and unequivocal, and constitutes a rejection of the offer and a counteroffer.” Minar v. Skoog, supra at 302; Abrahamson v. Abrahamson, 613 N.W.2d 418, 423 (Minn.App.2000)(“If the acceptance varies, it constitutes a counteroffer, which the original optionee may accept or reject,” and “[a] counteroffer does not give rise to a completed contract until accepted.”), citing Markmann v. H.A. Bruntjen Co., 249 Minn. 281, 81 N.W.2d 858, 862 (1957). Our conclusion that, under the circumstances presented, no contract was formed, turns largely on the absence of any showing, by the parties, as to the content of the telephonic negotiations between the parties’ attorneys and, particularly, the one which occurred on January 6, 2003, during which, according to Henry’s, a settlement was reached. In the absence of any evidence as to the content of that conversation, we are left to consider only the evidence which is now before us. Based on that evidence, we conclude that no agreement was reached. First, we note that, in the letter of January 17, 2003, from Freshway to Henry’s, Freshway refers to Henry’s having made a “settlement proposal” in its communication of January 7, 2003. While Freshway’s characterization of that letter is not binding on the Court, we are provided with some evidence to reflect that no accord was actually reached in the telephone conference of January 6, 2003. However, just as we are unable to credit Henry’s assertion, that its letter of January 7, 2003, memorialized a settlement agreement which had been reached on January 6, 2003 — absent any showing of the content of that conversation — we also cannot credit Freshway’s assertion that those conversations closed with an offer from Henry. Instead, we are compelled to limit our focus to the evidence that is competently before us. We conclude, based upon that evidence, that Henry’s purported acceptance, on January 7, 2003, was materially different from the last offer made by Freshway — on January 3, 2003 — and accordingly, we find that a complete accord was not then reached. The material difference, between the parties’ respective offers and acceptances, rests in the scope of the claims which the parties contemplated would be settled, by Henry’s payment of $10,000. We find that Freshway’s offer was solely to settle its breach of contract claim, and to agree to negotiate the dismissal of its trade dress claim, while Henry’s contemplated that its payment would dispose of both the breach of contract, and the trade dress claims, as is evidenced by the Settlement Agreement and Release, and the Stipulation of Dismissal with Prejudice, which are attached to Henry’s letter of January 7, 2003. We reach this conclusion after a close review of Freshway’s letters, to Henry’s, of November 1, 2002, and January 3, 2003. In its letter of January 3, 2003, Freshway responded to Henry’s suggestion that the parties “give one last shot at trying to negotiate” a settlement. Exhibit G to Henry’s Brief. Freshway starts by stating that it is interested in resolving the litigation, but that it “disagree^] with [Henry’s] sentiment that the breach of contract claim does not amount to ‘all that much money either,’ ” as Henry’s had stated in its letter of December 30, 2002. Id. Fresh-way then continues by expressing a belief that “[t]he ten thousand dollar figure suggested a few months ago was a very conservative estimate and a good-faith attempt at settlement,” by Freshway, and that, until it received certain outstanding discovery from Henry’s, it was “unwilling to reduce [that] demand.” Id. On its face, that letter might be construed as a simple offer to settle the case for $10,000. However, we conclude that we are obligated to look back to the “[t]he ten thousand dollar figure suggested a few months ago,” as Freshway clearly refers back to its letter of November 1, 2002. The letter accompanied the production of documents, which Freshway felt supported its breach of contract claim. Freshway pointed Henry’s to certain of those documents, which it believed demonstrated that an “internal audit indicated that the value of that contract claim was in excess of $10,000,” and stated that it would soon be requesting additional documents from Henry’s, to further assist in valuing that claim. Exhibit C to Henry’s Brief. Freshway then noted that it was “prepared to discuss a dismissal of the trade dress claims upon a resolution to the breach of contract claim,” and urged Henry’s to contact it, if Henry’s was “interested in further discussing a resolution to the breach of contract claim.” Id. Although it is largely irrelevant, we mention here, in the interest of completeness, that we do not regard the correspondence of November 1, 2002, as an offer to settle but, rather, as an invitation to Henry’s to make an offer to settle. The terms of that letter are not sufficiently “clear, definite, and explicit,” so as to constitute an offer, but reflect Freshway’s assessment of the value of its claims. Short v. Sun Newspapers, Inc., supra at 786. We believe that the letter is, instead, an invitation to Henry’s to present an offer to settle, after having considered the position advocated by Freshway. Id. (discussing the distinction between an offer and an invitation to make an offer). As we have previously related, Henry’s took Freshway up on that invitation, and offered to settle the entire case for $3,000 — an offer that Freshway flatly rejected on December 20, 2002. What is important about the letter of November 1, 2002, how-ever, is the fact that it clearly reflects that Freshway’s intent was to negotiate a satisfactory settlement of the breach of contract claim, and thereafter “discuss a dismissal of the trade dress claims.” Exhibit C to Hewy’s Brief. It is also clear that the $10,000 figure contained therein, related to the value that Fresh-way placed on its breach of contract claim, and not on the case as a whole. When we consider the letter of November 1, 2002, together with the letter of January 3, 2003, we can only fairly read the latter as constituting an offer to settle the breach of contract claim for $10,000. In that letter, Freshway specifically referenced the parties’ disagreement concerning the value of that claim, and then referred Henry’s back to its letter of November 1, 2002, which only dealt only with the breach of contract claim. In contrast, Henry’s proposed Settlement Agreement and Release, and Stipulation of Dismissal, which were attached to its letter of January 7, 2003, plainly contemplated the dismissal of the entirety of the ease, in exchange for the payment of $10,000. Such an “acceptance,” perforce, does not mirror the offer, and therefore, an enforceable contract was not reached. While we acknowledge the theoretical possibility that, during the course of their telephonic negotiations, the parties did agree that the entire case should settle for $10,000 — particularly given the fact that Freshway had admitted that the breach of contract was the more valuable of its claims, and had suggested that, if that claim could be settled for a satisfactory amount, it might also dismiss its trade dress claims — we are not presented with any evidence which supports such a surmise. Instead, the evidence reveals that Freshway made an offer to settle its breach of contract claim, and would consider, after that, dismissing its trade dress claim, while Henry’s purported “acceptance” contemplated the settlement of the case as a whole. Given the foregoing, we construe Henry’s letter of January 7, 2003, as a counteroffer, and not as an acceptance, which was rejected by Freshway, in its letter of January 17, 2003, by means of a fresh counter-proposal. As Henry’s rejected the terms of that counterproposal, we conclude that no enforceable contract was consummated by the parties, and we deny Henry’s Motion to Enforce the Settlement Agreement. B. Henry’s Motion for Summary Judgment. Henry’s seeks Summary Judgment as to Counts One through Seven of Freshway’s Amended Complaint, which are predicated on Federal law, and further requests that we decline to extend supplemental jurisdiction over Counts Eight and Nine, and dismiss those Counts, but without prejudice. 1. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. See, Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Duffy v. Wolle, 123 F.3d 1026, 1040 (8th Cir.1997), cert. denied, 523 U.S. 1137, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. See, Eide v. Grey Fox Technical Servs. Corp., 329 F.3d 600, 604 (8th Cir.2003); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir.2003); United Fire & Casualty Ins. Co. v. Garvey, 328 F.3d 411, 413 (8th Cir.2003). For these purposes, a disputed fact is “material” if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is “genuine” if the evidence is such that a reasonable Jury could return a verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707, 711 (8th Cir.2003); Jenkins v. Southern Farm Bureau Casualty, 307 F.3d 741, 744 (8th Cir.2002); Herring v. Canada Life Assurance Co., 207 F.3d 1026 (8th Cir.2000). As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmov-ing party to demonstrate the existence of a genuine dispute. In sustaining that burden, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256, 106 S.Ct. 2505; Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 602 (8th Cir.2003). Moreover, the movant is entitled to Summary Judgment where the non-moving party has failed “to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, supra at 322, 106 S.Ct. 2548; see also, Mercer v. City of Cedar Rapids, 308 F.3d 840, 843 (8th Cir.2002); Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir.2000). No genuine issue of fact exists in such a case because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, supra at 323, 106 S.Ct. 2548; see also, Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir.1995); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.1995); Settle v. Ross, 992 F.2d 162, 163 (8th Cir.1993). 2. Legal Analysis. a. Henry’s Motion for Summary Judgment as to Freshway’s Claims of Trademark/Service Mark Infringement. Claims Two, Three, and Six, of Fresh-way’s Amended Complaint allege Trade and Service Mark infringement, in violation of Title 15 U.S.C. § 1114, Federal common law, and Chapter 333 of the Minnesota Statutes, respectively. Henry’s argues that it is entitled to Summary Judgment as to each of those claims, because Freshway has conceded that Henry’s trade and service marks, do not violate Freshway’s registered marks. 1) Claims Two and Three. At the time of the Rearing, Freshway conceded that it could not state a claim of trademark infringement, under either Federal statutory, or common law, as Henry’s logo did not infringe upon Freshway’s protected logo. Although Freshway had suggested, in its Memorandum in Opposition to Henry’s Motion that, under the relevant law, “the difference between trade dress and trademark is no longer of importance in determining whether trade dress is protected by law,” and that its claims of trade dress infringement were simply a subspecies of trademark infringement, which are actionable under the laws governing trademarks, Freshway has apparently, and we find properly, abandoned that position. See, Freshway’s Memorandum of Law in Opposition to Henry’s Motion for Partial Summary Judgment (“Freshway’s Brief’), at 2 (“ * * * Freshway does not contest the fact that, from a pure trademark analysis, the Deli Max logo itself does not violate Freshway’s federally registered trademark logo.”). Claims Two and Three allege violations of Title 15 U.S.C. § 1114, or the Federal common law of service mark infringement, which are distinct from an action under Title 15 U.S.C. § 1125— that is, one asserting trade dress infringement. Accordingly, in the absence of any proof of a violation of either Section 1114, or the Federal common law of service mark infringement, we grant Henry’s Summary Judgment as to those Claims. 2) Claim Six. In this Claim, Fresh-way alleges that Henry’s violated State Trademark laws and, in the context of Freshway’s prior Motion to Amend its Complaint, we have previously addressed the viability of that action. In its opposition to that Motion, Henry’s correctly noted that Minnesota Statutes Section 333.29 only provides relief for an infringement of a mark which has been registered, under Sections 333.18 — 333.31, with the office of the Minnesota Secretary of State. While Freshway admitted that its mark had not been so registered, it pointed to Section 333.41, and asserted that it could state a claim under that provision, which did not contain such a registration prerequisite. Section 333.41 provides as follows: When any person, or any association or union of workers, shall have adopted or used any label, trademark, term, design, device, or form of advertisement for the purpose of designating, making known, or distinguishing any product of labor as having been made, produced, prepared, packed, or put on sale by such person, association, or union, or by a member thereof, it shall be unlawful to counterfeit or imitate the same, or to use, sell, offer for sale, or in any way utter or circulate, any counterfeit or imitation of any such label, trademark, term, design, device, or form of advertisement. In our Order which granted Freshway’s Motion to Amend, we construed “this statutory provision as being focused on products which bear a ‘union label’ so as to distinguish that product from non-union goods.” Our reading of the provision was guided, in part, by the fact that the apparent “genesis for the Statute was the Minnesota Supreme Court’s decision in Cigar-Makers’ Protective Union v. Conhaim, 40 Minn. 243, 41 N.W. 943 (1889), which held that such ‘union labels’ were not protectible trademarks.” We further related that we were not convinced that, after the Minnesota Legislature’s amendments to Section 333.29, in 1998, there remained any “viable civil action, under Minnesota State law, for any marks not registered with the Minnesota Secretary of State.” Order of October 8, 2002 [Docket No. 50], at p. 4. Despite the stated concern, in the absence of any clear guidance from Minnesota cases, and given the standard by which we assess the futility of a proposed claim, we could not state, under Rule 12(b)(6), Federal Rules of Civil Procedure, that no claim could be stated as a matter of law, and we granted Freshway’s Motion to Amend. See, Brancheau v. Residential Mortgage Group, Inc., 177 F.R.D. 655, 656 (D.Minn.1997). We cautioned, however, that the addition of such a claim “may well prompt a future dispositive Motion.” Id. at p. 5. We now confront that dispositive Motion, and Henry’s submits that we should adopt our prior analysis, and conclude that Section 333.41 only applies to “union labels,” which are not at issue here, with the consequence that Claim Six fails to assert a viable cause of action. Henry’s also underscores that the only remedies allowed for violations of Section 333.41 are criminal in nature, and urges that, as a result, Section 333.41 cannot provide a viable basis for a civil claim, even one seeking injunctive relief. Indeed, Section 333.42 provides that a person who counterfeits such a label, “shall be punished by imprisonment in the county jail for not more than three months, or by a fíne of not more than $100;” Section 333.44 makes it a misdemeanor to fraudulently register such a label; and the Section makes it a misdemeanor to unlawfully use, or display, a registered label. At the time of the Hearing, Freshway acknowledged that only criminal penalties were allowed under the Statute, and that the Private Attorney General Act, Minnesota Statutes Section 8.31, Subdivision So, which, in some instances, allows a private individual, in the stead of the Government, to pursue remedies for violating certain statutes, does not apply to Section 333.44. Even so, Freshway advised that it was requesting injunctive relief under the Statute. We have canvassed the law, and have found no case authority, under State or Federal law, which definitively addresses the scope of Section 333.41. The only annotations to Section 333.41 cite to the Cigar-Makers case, which served as the genesis of the Section, and to a Minnesota Attorney General opinion of May 10, 1953, to the effect that a “Trademark or form of advertising, which does not distinguish any product of labor, but which is used only for advertising and general promotional activities, may not be registered in the office of the Secretary of State.” As a consequence, we adhere to our initial reading of the Statute — a reading that is bolstered by the Cigar-Makers decision, the Attorney General’s opinion, and the absence of an attempt, by anyone, to litigate a civil claim such as Freshway has attempted here. Given the absence of any authority which recognizes a civil action under the referenced Section, much less the availability of injunctive relief, Freshway has failed to sustain its burden of demonstrating a cognizable cause of action, and we grant Summary Judgment to Henry’s as to Claim Six. We are confident that, if the Minnesota Legislature had intended private parties to seek civil relief under the Section, whether it be compensatory damages, or equitable relief, provision for such a claim would have been expressly stated. In view of the Record submitted here, we decline to legislate a cause of action which the Minnesota Legislature has failed to recognize. b. Henry’s Motion for Summary Judgment as to Freshway’s Unfair Competition Claims. In Claims Four and Seven of its Amended Complaint, Freshway alleges that Henry’s has committed unfair competition, in violation of State and Federal common law. Finding the claims to be without merit, we grant Summary Judgment to Henry’s as to those claims. 1) The State Law Claims. Under Minnesota law, “[ujnfair competition is not a tort with specific elements,” but rather, it “describes a general category of torts which courts recognize for the protection of commercial interests.” Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 305-06 (Minn.App.1987). Under this doctrine, if we find that the underlying tort is duplicative of another Count of the Complaint, the claim for unfair competition must be dismissed. See, Zimmerman Group, Inc. v. Fairmont Foods of Minnesota Inc., 882 F.Supp. 892, 895 (D.Minn.1994)(dismissing claim to the extent that it was duplicative of, or was preempted by, other claims in the Complaint). In order for such a “claim to stand, [the Plaintiff] must identify the underlying tort which is the basis for the unfair competition claim.” Id. Here, Freshway has identified no such tort. Rather, in its Amended Complaint, Freshway has simply realleged the facts supporting all of its claims, and has then has asserted that those “acts constitute trademark, service mark, trade dress, and copyright infringement resulting in unfair competition, and passing off in violation of the common law of the State of Minnesota.” Amended Complaint, at 10. “To the extent that the unfair competition claim is based upon acts” of trade and service mark, trade dress, and “copyright infringement, it is preempted” by the Federal law governing such acts. Zimmerman Group, Inc. v. Fairmont Foods of Minnesota, Inc., supra at 895. Since Freshway has identified no independent tort that provides the basis for its unfair competition claim, we grant Summary Judgment to Henry’s on Claim Seven of the Amended Complaint. 2) Federal Common Law Claims. We also grant that portion of Henry’s Motion for Summary Judgment as to Claim Four of the Amended Complaint, which alleges unfair competition in violation of Federal common law, because no such law exists. Federal Courts have held that, “[generally, ‘there is no federal common law of unfair competition;’ a claim for relief must ‘rest on a federal statute which defines and provides relief for this type of tort.’ ” Telecom International America, Ltd. v. AT & T Corp., 67 F.Supp.2d 189, 215 (S.D.N.Y.1999), quoting Water Tech. Corp. v. Calco, Ltd., 850 F.2d 660, 670 (Fed.Cir. 1988), cert. denied, 488 U.S. 968, 109 S.Ct. 498, 102 L.Ed.2d 534 (1988); see also, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (“There is no federal general common law,”); Moore U.S.A., Inc. v. Standard Register Co., 139 F.Supp.2d 348, 361 n. 6 (W.D.N.Y. 2001)(“[T]here is no federal law claim for unfair competition.”); Northwest Power Prods. Inc., v. Omark Indus., Inc., 576 F.2d 83, 88 (5th Cir.1978). The relief that Freshway seeks, for the actions claimed to be competitively unfair, is provided under the Lanham Act. See, Water Tech. Corp. v. Calco, Ltd., supra at 670 n. 8 (citing the Lanham Act, as providing relief for unfair competition “in the area of protection of trade identity and false advertising” as an example of the “very narrow grounds for relief from unfair competition” provided by Federal statutes). The Plaintiff has alleged such a statutory claim, and there are no separate grounds to state the same claim under Federal common law. Accordingly, we grant this aspect of Henry’s Motion, as well. c. Henry’s Motion for Summary Judgment as to Freshway’s Lanham Act, and State Law Deceptive Trade Practices Claims. Given the foregoing, the only Claims, targeted by Henry’s, that remain substantively at issue are Claims One and Five, in which Freshway alleges false representation and false designation of origin, in violation of Title 15 U.S.C. § 1125(a), and deceptive trade practice in violation of Minnesota Statutes Section 325D.44. As to the trade dress Claim, we face an initial conundrum of considerable proportion. While Section 1125 does not so expressly provide, its language, either implicitly, or by way of construction, requires that the alleged infringer’s use of the asserted trade dress not be authorized by the owner of that dress. We could not plausibly allow an infringement action if, for example, the alleged infringer’s employment of the trade dress had been authorized by a license agreement, or some other contract, with the owner of the dress. Indeed, if authorization to display the dress were afforded to the person engaged in such a display, no action could lie because there would be no “false designation of origin, false or misleading description of fact, or false or misleading representation of fact.” Title 15 U.S.C. § 1125(a)(1). Here, Henry’s correctly notes that Freshway has not commenced any infringement action against the eight store owners whose fast-food displays are the target of Freshway’s lawsuit against Henry’s. According to Henry’s, the store owners are the real parties in interest, who should have been the named Defendants in this action. It is undisputed that, when the eight stores, which are at issue in this litigation, terminated their contractual relationship with Freshway, they were permitted to keep the equipment that they had pm-chased from Freshway, and were unrestricted, by any agreement with Freshway, as to the use of that equipment, apart from a requirement that they remove Freshway’s logo, and trademark, from their stores. [Tr. 55-59], Henry’s maintains that, because it did no more than “permit” the store owners to continue their use of the equipment that the stores owned, if Freshway has a complaint against anyone for trade dress infringement, it would be against the individual store owners, and not Henry’s. Id. at 60. Freshway counters by arguing that trade dress infringement is a tort, such that any person who knowingly participates in furthering the infringement may be contributorily liable for that infringement, or be liable as a joint tortfeasor. According to Freshway, knowing participation in the furtherance of infringement is sufficient to impose liability upon Henry’s. Freshway contends that, by Affidavit, William Hill (“Hill”), who is the owner of a store in Onamia, Minnesota, which converted from Freshway to Deli Max in 1999, has averred that Henry’s agent informed him that he need only remove the Freshway logo, in order to continue his business as a Deli Max. As related by Freshway, such an averment is sufficient to raise a question of material fact, as to whether Henry’s encouraged store owners to infringe Freshway’s trade dress, or knowingly supplied products to those who Henry’s knew, or had reason to know, were doing so. Affidavit of William Hill, attached as Exhibit B to Freshway’s Memorandum of Law. Freshway underscores that Hill has averred that he was specifically advised, by an employee of Henry’s, that he could continue to use the Freshway counter, menu board, canopy awning, and outdoor sign, that he had purchased from Freshway. Id. It is clear that the Lanham Act does not, by its plain terms, limit liability to a direct infringer, but allows for secondary liability. As the United States Supreme Court has explained: [Liability for trademark infringement can extend beyond those who actually mislabel goods with the mark of another * * *. Thus, if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit. Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 853-54, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (finding secondary liability under Section 32 of the Lanham Act); see also, AT & T Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421 (3rd Cir.1994)(extending the holding in Inwood to Section 43(a) of the Lanham Act). Thus, secondary liability is available under the Lanham Act, but that leaves unanswered the contention that the store owners’ use of the claimed trade dress was sanctioned by Freshway. Our analysis of the issue is constrained by the failure of either party to offer copies of the agreements, between the store owners and Freshway, for our review. Nevertheless, evidence has been adduced which bears on that contractual issue. At the time of the Hearing on Freshway’s Motion for a Preliminary Injunction, Goddard provided the following testimony on cross examination: Q. You had a contract with each of these eight stores, true? A. Yes. Q. And in the contract there’s a 60 day out, isn’t there, that either party can get out by giving the other party a 60 day notice; isn’t that right? A. (No response.) Q. Is that correct? A. No, it’s not correct. Q. Okay. In the contract that is involved with these eight stores. When there’s a termination, is it correct that * * * Freshway does not require any termination of the use of the awnings, counters, sneeze guards, or menu boards? A. Menu boards, yes. Menu, we have restrictions on the menu board itself they could use, replace, come up with their own menu. Q. Let me ask the question again. In the contract is there any restriction for the store owner to continue to use the awnings? A. No. Q. Is there any restriction on their continued use of the counters? A. No. Q. Is there any restrictions on the continued use of the sneeze guards? A. No. Q. Is there any restrictions on the continued use of the menu boards? A. The boards themselves, no. The menu, yes. Q. Thank you. I understand that since May 15 of 2001, what we just talked about is no longer the case. That you do now have restrictions with your customers; is that right? A. We have converted Freshway from a licensed program to a franchise, so, yes. Q. And so now if you’re a Freshway store, in your contract with the store owner, that store owner can’t just simply continue to, after the termination with the Freshway, they can’t just simply continue to use the awnings and the counters, right? A. No. We haven’t written what we will require them to take down yet. Q. You have not done that? A. No. Q. So it remains that you can continue to use the awnings and counters? A. No. We have not written the part of the agreement if they leave us what they’re required to take down. Tr. 35-37. Given this testimony, it is undisputed that the store owners employed many of the components of Freshway’s alleged trade dress without any contractual constraint to cease doing so. Indeed, the evidence is clear that the only contractual restriction, which involved Freshway’s trade dress, required the store owners to remove the Freshway trademark, and logo, after terminating their relationship with Freshway. See, Plaintiffs Responses to Defendant’s Admissions, Exhibit 35 to Affidavit of Amy J. Doll, dated May 7, 2003. While we understand Freshway to urge that Henry’s is a joint tortfeasor, and that a trade dress action is viable against it on that basis, a tort only exists if there exists a duty, on the part of the alleged tortfea-sor, which has been unlawfully breached. In the absence of any showing that the store owners were precluded from continuing the use of the equipment that they had purchased from Freshway, we are unable to find any duty. We are not presented with a whit of evidence that, after the termination of the license agreements, the store owners were obligated to alter, or dispose of, the displays they purchased from Freshway, apart from having to abandon Freshway’s trademark and logo, which the store owners accomplished. We are hardpressed, on this Record, to find any infringement by Henry’s, when the very conduct of continuing with the décor, counters, and awnings, which Freshway now proclaims as trade dress, were fully authorized to be continued, and maintained, in the eight stores involved in this lawsuit. Moreover, the distinction between Freshway’s purported trade dress, and its trademark and logo, is telling, for as to the latter, Freshway was sufficiently concerned about the proprietary value of the trademark, and logo, as to require their relinquishment at the time a license agreement was terminated. No such relinquishment was applicable to the remaining components of Freshway’s purported trade dress. Given the Record presented, there is abundant support for the absence of any contractually required abandonment of Freshway’s claimed trade dress, apart from its logo and trademark. The Record is uncontested that, in order to induce store owners to enter contracts with it, Freshway allowed great flexibility in designing fastfood displays that conformed with the store owners’ existing décor, as opposed to Freshway’s. See, Tr. 40. In fact the only constants in Freshway’s displays were the presence of its logo and trademark, and the great variety in colors employed, and overall visual effect. In view of the store owners’ outright purchase of displays that were suited to their own specifications, we can readily understand Freshway’s election not to request, or demand, that the store owners alter, or remove, the displays purchased from Freshway. Indeed, notwithstanding our prior forewarning, in our Order denying Freshway’s request for equitable relief, Freshway has advanced no showing that “cease and desist” notices were provided to the store owners, or that any attempt was made to preclude the store owners continued use of Freshway’s purported trade dress. Notably, Freshway offers no authority that, under the unique circumstances presented here, Henry’s should be held to a more exacting standard than Freshway has held the store owners. On this Record, we conclude that Freshway authorized the continued use of the displays at issue, thereby precluding any viable claim of trade dress infringement by Henry’s. We do not, however, pinion our decision solely on that basis, and we continue to analyze Freshway’s trade dress Claim as if Fresh-way had not authorized the very conduct it now seeks to challenge, albeit derivatively. Accordingly, we turn to the usual framework in assessing the merits of Henry’s Motion for Summary Judgment. 1) Standard of Review. We note at the outset that the Minnesota Deceptive Trade Practices Act, as codified in Minnesota Statutes Section 325D.43-48, enjoins the same false and deceptive practices that are unlawful under the Lanham Act and, as a result, plaintiffs typically incorporate their claims under both the Federal and State statutes. See, Alternative Pioneering Systems, Inc. v. Direct Innovative Prods., Inc., 822 F.Supp. 1437, 1441 (D.Minn.1993); Multi-Tech Systems, Inc. v. Hayes Microcomputer Prods., Inc., 800 F.Supp. 825, 847 (D.Minn.1992), appeal dismissed, 988 F.2d 130 (Fed.Cir.1993). Conduct that violates the Lanham Act also violates Minnesota’s Deceptive Trade Practices Act, and a Complaint which adequately states a claim under the Lanham Act, also states a claim under Minnesota’s Statute. Id. As a consequence, while we address Henry’s Motion in context of the Lanham Act, our analysis applies equally to Freshway’s State law claim. For years, the Federal Courts have analyzed trade dress infringement under the general trademark infringement provisions of Section 43(a) of the Lanham Act, Title 15 U.S.C. § 1125(a)(1)(A), which provides a cause of action for injury caused by the use of “any work, term, name, symbol, or device, or any combination thereof * * * which * * * is likely to cause confusion * * * as to the origin, sponsorship, or approval of his or her goods,” “on or in connection with any goods or services, or any container for goods.” See also, TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 29, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). In 1999, however, Congress amended the Lanham Act to provide specific protection for trade dress. See, Title 15 U.S.C. § 1125(a)(3). Nonetheless, even with a separate Statute providing the cause of action for an infringement of trade dress, as opposed to trademarks, it is important to note that “[t]he difference between trade dress and trademark is no longer of importance in determining whether trade dress is protected by federal law.” Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 868 (8th Cir.1994); see also, Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 773, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)(“[Section] 43(a) provides no basis for distinguishing between trademark and trade dress.”). The Courts have generally defined “trade dress” as the “ ‘total image of a pi*oduct, the overall impression created, not the individual features.’ ” Children’s Factory, Inc. v. Benee’s Toys, Inc., 160 F.3d 489, 494 (8th Cir.1998), quoting Insty*Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir.1996), cert. denied, 519 U.S. 1151, 117 S.Ct. 1085, 137 L.Ed.2d 219 (1997); see also, Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 601 n. 3 (8th Cir.1999). The United States Supreme Court has recently explained trade dress protection as follows: The design or packaging of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source; and a design or package which acquires this secondary meaning, assuming other requisites are met, is a trade dress which my not be used in a manner likely to cause confusion as to the origin, sponsorship, or approval of the goods. TrafFix Devices, Inc. v. Marketing Displays, Inc., supra at 28, 121 S.Ct. 1255. Thus, for example, a restaurant’s trade dress might include “the shape and general appearance of the exterior of the restaurant,” “the identifying sign,” “the interior floor plan,” “the appointments and decor items,” “the equipment used to serve the food,” “and the servers’ uniforms.” Pru-frock Ltd., Inc. v. Lasater, 781 F.2d 129, 132 (8th Cir.1986). However, trade dress law does not provide a blanket protection “from a competitor’s imitation of one’s marketing concept,” or “the mere method and style of doing business.” Aromatique, Inc. v. Gold Seal, Inc., supra at 868; see also, Prufrock Ltd., Inc. v. Lasater, supra at 131-32 (“A franchisor does not have a business interest capable of protection in the mere method and style of doing business.”). In order to receive protection for trade dress, under the Lanham Act, a claimant must show that the identifying mark is distinctive and capable of being protected, by showing that it is either inherently distinctive, or has acquired distinctiveness through secondary meaning; that the trade dress is primarily non-functional; and that there is a likelihood of confusion. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209-14, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000); see also, Two Pesos, Inc. v. Taco Cabana, Inc., supra at 769-70, 112 S.Ct. 2753; Children’s Factory, Inc. v. Benee’s Toys, Inc., supra at 494; Insty*Bit, Inc. v. Poly-Tech Indus., Inc., supra at 666. Underlying both the functionality, and the distinctiveness requirements, is the general policy behind the Lanham Act, which is “to protect an owner of a dress in informing the public of the source of its products without permitting the owner to exclude competition from functionally similar products.” Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 33 (2nd Cir.1995). In considering trade dress claims then, “the Lanham Act must be construed in the light of a strong federal policy of vigorously competitive markets” and, as such, “[g]eneric terns cannot be protected because, inter aba, competitors need them to describe their products to consumers,” where as “arbitrary or fanciful works and phrases may be appropriated by a single producer without depriving others of a means of describing their products to the market.” Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 379-80 (2nd Cir.1997), citing Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2nd Cir.1976). Therefore, “granting trade dress to an ordinary product design would create a monopoly in the goods themselves,” because it would effectively prevent others from dispensing the same goods, and so, trade dress protection should only be offered where it would “accord protection to symbols consumers are likely to rely upon in distinguishing goods,” and should be denied where it “would hamper efforts to market competitive goods.” Id. Similarly, granting trade dress protection to fully functional features, “ Vould put competitors at a significant non-reputation-based disadvantage.’” TrafFix Devices, Inc. v. Marketing Displays, Inc., supra at 32, 121 S.Ct. 1255, quoting Qualitex Co. v. Jacobson Prods., Inc., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995)(“[A] design is legally functional and thus unprotectable, if it is one of a number of equaby efficient options open to competitors and free competition would be unduly hindered by according the design trademark protection.”). As a result, “trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products.” Id. at 29, 121 S.Ct. 1255. 2) Legal Analysis. As previously noted, the threshold determination, in ascertaining whether Henry’s has infringed Freshway’s trade dress, is a finding that Freshway has a protectible trade dress, which necessitates a showing, by Fresh-way, that its trade dress is distinctive, and nonfunctional. We address each showing in turn. a) Distinctiveness. Freshway maintains that its trade dress is suggestive, or even arbitrary, and is, therefore, inherently distinct. According to Freshway, neither its name, nor its trade dress, convey an “immediate idea of the ingredients, qualities or characteristics of the goods,” such that a person who is unfamiliar with Freshway, or its trade dress, would not immediately think of the food sold by the Plaintiff, and it would require some “imagination to make the connection between the word Freshway, or its trade dress and sub sandwiches, pizza, salads, and chickens.” Freshway’s Memorandum of Law in Opposition to Henry’s Motion for Partial Summary Judgment (“Freshway’s Brief’), at 5. As such, Freshway maintains that we should find its trade dress arbitrary, or suggestive, as opposed to descriptive, or generic, and thereby, distinctive. As to the requirement, that protectible trade dress should be distinctive, the Supreme Court has explained that such a showing is not expressly required by Section 43(a) of the Lanham Act, but has, nonetheless, been “universally imposed” by the Courts, “since without distinctiveness” the trade dress would not “cause confusion * * * as to the origin, sponsorship, or approval of [the goods]” as that Section requires. Wal Mart Stores, Inc. v. Samara Bros., Inc., supra at 210, 120 S.Ct. 1339. There are two ways to prove the required distinctiveness, either by showing that the trade dress “is inherently distinctive,” as “ ‘[its] intrinsic nature serves to identify a particular source,’ ” id. at 210, 120 S.Ct. 1339, quoting Two Pesos, Inc. v. Taco Cabana, Inc., supra at 768, 112 S.Ct. 2753, or “it has developed a secondary meaning, which occurs when, ‘in the minds of the public, the primary significance of the [mark] is to identify the source of the product rather than the product itself.’ ” Id. at 211, 120 S.Ct. 1839, quoting Inwood Labs., Inc. v. Ives Labs., Inc., supra at 851 n. 11, 102 S.Ct. 2182. In determining whether a mark is distinctive, we first categorize “the mark as either generic, descriptive, suggestive, or arbitary [or fanciful].” General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 625 (8th Cir.1987), citing Co-Rect Prods., Inc. v. Marvy! Advertising Photography, Inc., 780 F.2d 1324, 1329 (8th Cir.1985); see also, Stuart Hall Co., Inc. v. Ampad Corp., 51 F.3d 780, 785 (8th Cir.1995). Suggestive or fanciful trade dress is inherently distinctive, see Stuart Hall Co., Inc. v. Ampad Corp., supra at 785, and is protected, under the Lanham Act, without a showing that it has acquired secondary meaning. Two Pesos, Inc. v. Taco Cabana, Inc., supra at 767, 112 S.Ct. 2753. Descriptive trade dress, however, is not inherently distinctive, and therefore, a showing of secondary meaning is necessary. See, Stuart Hall Co. v. Ampad Corp., supra at 785. Generic trade dress is not protectible under the Lanham Act. Id. In delineating between trade dress, which is inherently distinctive, and that which is merely descriptive, our Court of Appeals has instructed: The distinction between suggestive and descriptive trademarks, and thus between distinctive and nondistinctive trademarks was delineated in Abercrombie [ & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2nd Cir.1976) ]: “A term is suggestive if it requires imagination, thought and perception to reach a conclusion as to the nature of goods. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods. * * * These definitions address the relation between the product and the trade dress, not the relation between the trade dress and the consumer. The question they present is whether, and how much, the trade dress is dictated by the nature of the prod