facts are not in dispute. At most, the evidence cited by Hybrid indicates that

Walmart displayed Hybrid’s products and signage in close proximity to the MMA

signage and that Hybrid paid for and designed part of the signage for Hybrid’s

products and some of the physical display materials for those products.

At issue in both the denial of Hybrid’s summary judgment motion and the

granting of Federal’s cross-motion is whether (1) the retail display constitutes an

advertisement within the meaning of the Policy and (2) there was an advertising

injury under the Policy.

The Policy defines an advertisement as “an electronic, oral, written or other

notice, about goods, products or services, designed for the specific purpose of

3 18-56658 attracting the general public or a specific market segment to use such goods,

products or services.” The Policy defines an advertising injury as an “injury . . .

sustained by a person or organization and caused by an offense of infringing, in

that particular part of [Hybrid’s] advertisement about [Hybrid’s] goods, products or

services, [ ] upon their copyrighted advertisement; or registered collective mark,

registered service mark or other trademarked name, slogan, symbol or title.”

Hybrid contends that the advertisement was the entire retail display. Thus, as

Hybrid repeatedly emphasizes, the advertisement is the combination of signage and

displays of products. Even assuming that Hybrid is correct on this point, we

conclude that summary judgment was properly granted because undisputed

evidence establishes that the advertisement was not “[Hybrid’s] advertisement.”

That combination is not Hybrid’s, because Hybrid did not design, pay for, possess,

or set up the combination; Walmart did.

While “close proximity” of Hybrid’s products to the MMA Elite signage

arguably may be enough to show that the resulting arrangement was an

“advertisement about [Hybrid’s] goods,” it is not enough to establish that the retail

display was Hybrid’s advertisement about Hybrid’s goods. Similarly, with respect

to the non-MMA-Elite signage and display materials that Hybrid paid for and/or

designed, the contribution of materials that are used to make a different composite

advertisement does not make that resulting advertisement Hybrid’s. Accordingly,

4 18-56658 the district court did not err in granting Federal’s cross-motion for summary

judgment.

Hybrid also appeals the district court’s denial of Hybrid’s motion for

continuance to conduct additional discovery, which sought underwriting guidelines,

underwriting manuals, claims handling guidelines, claims handling manuals and

underwriting files. The requested discovery would not have been useful in resolving

the key coverage issue discussed above. The district court did not abuse its discretion

in denying the request.

Finally, Hybrid asks that, pursuant to Federal Rule of Evidence 201(c)(2), we

take judicial notice of two photographs that are referenced in two of the cases that

Hybrid cites in the Reply Brief. These photographs show retail advertising displays.

Even assuming the request is timely, those other retail advertising displays are not

relevant to this case. We therefore deny the Appellant’s Request for Judicial Notice.

AFFIRMED.

5 18-56658