* Local Rule 47.5 provides: “The publication of opinions that have no precedential value and

merely decide particular cases on the basis of well-settled principles of law imposes needless expense

on the public and burdens on the legal profession.” Pursuant to this Rule, the Court has determined

that this opinion should not be published. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 96-60313

Summary Calendar

__________________________

DON A. SAULTERS, Individually and

CLEARWATER DEVELOPMENT CORPORATION,

Plaintiffs-Appellants,

VERSUS

JACK CARSON, JR., AND

AMERICAN MOLDED STRUCTURES, INC.,

Defendants-Appellees.

___________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(2:96-CV-45-B-A)

__________________________________________

November 21, 1996

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM: *

This action arises out of a failed business v ent ure between the plaintiff/appellant, Don A.

Saulters (“Saulters”), and the defendant/appellee, Jack Carson, Jr. (“Carson”), to develop and market

a new type of personalized sports watercraft. After the init ial deterioration, Carson later began to

develop an d market a similar craft and the two one-time business associates became competitors.Saulters and his company brought suit against Carson and his company claiming trademark

infringement, unfair competition, and misappropriation of trade secrets. Saulters then moved for a

preliminary injunction to enjoin the defendants from marketing their watercraft and to prevent them

from using their trademark, OCEAN VU. The district court denied this motion for a preliminary

injunction and the plaintiffs timely appealed this decision.

A preliminary injunction is an extraordinary remedy that should not be granted unless t he

movant has demonstrated by a clear showing: (1) a substantial likelihood of prevailing on the merits;

(2) a substantial threat of irreparable harm if t he injunction is not granted; (3) that the threatened

injury outweighs any harm that may result from the injunction to the nonmovant; and (4) that the

injunction will not undermine public interests. Roho, Inc. v. Marquis , 902 F.2d 356, 358 (5th Cir.

1990).

I. Prevailing on the merits

A. Trademark infringement

A certificate of trademark registration establishes a rebuttable presumption of the validity of

the mark, the regis t rant ’s o wnership of the mark, and the registrant’s right to use the mark in

commerce. 15 U.S.C. § 1057(b). However, a condition precedent to any trademark claim is that the

m ark be used in commerce. S ee 15 U.S.C. § 1051. There is questionable evidence as to whether

SEA VU’s trademark has ever been used in commerce.

Nevertheless, assuming arguendo that Saulters has enforceable trademark rights, to prove a

claim of trademark infringement, the plaintiffs must show that the defendants’ use of OCEAN VU

is likely to cause confusion in the minds of potential renters as to “source, affiliat ion, or sponsorship”

of SEA VU. O reck Corp. v. U.S. Floor Systems, Inc.

, 803 F.2d 166, 170 (5th Ci r. 1986), c ert.denied, 481 U.S. 1069 (1987). We have identified seven factors that are relevant to the question of

likelihood of confusion: the strength of the trademark at issue; similarit y of design between the marks;

similarit y of products; identity of retail outl ets and purchasers; similarit y of advertising media utilized;

defendant’s intent; and actual confusion. Id.

Here, no confusion of any kind is present for two r easo ns. First, since SEA VU is not in

production, it would be purely conjectural at this point to hold that likelihood of confusion can be

proven at some time in the future. Second, a compariso n of the two trademarks shows distinct

differences. Thus, plaintiffs have failed to adequately prove a trademark infringement claim.

B. Misappropriation of trade secrets

Under Mississippi law, a “trade secret” is defined as

information, including a formula, pattern, compilation, program, device, method, technique,

or process, that: (i) derives independent economic value, actual or potential, from not being

generally known to, and not being readily ascertainable by proper means by, other persons who

can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are

reasonable under the circumstances to maintain its secrecy. Miss. Code. Ann. § 75-26-3(d)

(1990).

After reviewing the record, it is evident that OCEAN VU and SEA VU concept is one that

is generally known to the public. This broad idea is currently available to the public in other similar

vessels. Since this idea is not novel and is embodied in other vessels, the idea of a motorized personal

watercraft cannot be a trade secret. Consequent ly, it is impossible for the plaintiffs to establish a

claim for misappropriation of trade secrets.

Accordingly, for the foregoing reasons, we find that the lower court’s decision should be

AFFIRMED.