Defendants Charles Marquis, Chase Air Flotation, and Chase Orthopedic Care, Inc. (collectively “Marquis”) appeal a preliminary injunction order, enjoining them from, among other things, using wheelchair cushions manufactured by plaintiff Roho, Incorporated (“Roho”) to create a therapeutic mattress. Finding that Roho did not demonstrate a likelihood of prevailing on the merits, we vacate the injunction.
I.
The somewhat simple facts surrounding this dispute raise a disproportionately elusive problem of trademark law. Roho manufactures wheelchair cushions with a specialized technolоgy that utilizes a series of airpockets to provide enhanced support. It also manufactures another product, the Roho mattress, which is made by assembling four of the cushions together. The mattress is leased to hospitals, which in turn use them for bedridden patients both to prevent and to treat decubitus ulcers. 1 In conjunction with its mattress leasing program, Roho provides additional services for the hospital, which include delivering and picking up the mattresses, inflating and adjusting them to suit the patient, and disinfecting them after use. Roho claims that its president, Robert Graebe, holds a patent on the technology and the cushions, but not on the mattresses. Both the cushions and the mattresses are labeled with the Roho trademark, patent information, and instructions for maintaining the product.
Charles Marquis is the president, sole shareholder, and sole officer of Chase Orthopedic Care, Incorporated, a Louisiana corporation that sells and leases medical care equipment. In December 1988, Marquis bought eighty-seven Roho wheelchair cushions. He removed the Roho labels from ten of those cushions and fastened the cushions together with glue and grommets to make a mattress. He then placed a tag on the mattress, indicating the name and address of his company, and began marketing it to Tulane Hospital. Except for the labeling, grommets, and additional valves, which are only visible upon close inspection, the Marquis mattress is virtually indistinguishable from Roho’s mattress. However, the Marquis mаttress does include a unique feature — it permits increased manual adjustment along the longitudinal axis.
*358 After making an unsuccessful demand upon Marquis to stop marketing his mattress, Roho sought injunctive relief, claiming: (1) that Marquis had engaged in “reverse palming off” or selling Roho’s mattress as his own, which is a use of false designаtion of origin and false representation in interstate commerce in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2) that Marquis had utilized Roho trademark and service marks in violation of 15 U.S.C. § 1114 and Louisiana trademark law; and (3) that Marquis engaged in unfair competition, dilution of business reputation, unfair trade practices, and fraud as prohibited by Louisiana law.
The district court initially granted Roho’s ex parte motion for a temporary restraining order and required Roho to post a $1,500 bond. After a subsequent hearing, the court issued a preliminary injunction on the ground that Marquis had likely violated the Lanham Act’s prohibition against falsely designating the origin of a product. Marquis appeals the preliminary injunction, which orders him to refrain from
(a) Combining plaintiff's wheelchair cushions in the form or shape of a mattress and offering said mattress for sale, lease or use, for compensation or otherwise;
(b) Removing or obliterating any portion of the yellow or gold etching, printing or other markings from the back of the wheelchair cushions including the trademarks;
(c) Representing in any way, directly or indirectly, that the plaintiff’s wheelchair cushions or the plaintiff’s mattresses are manufactured by defendants;
(d) Selling or offеring for sale the plaintiff’s products under a different name or representation or attaching any type of label thereto indicating the defendants’ name and address; and
(e)Utilizing the plaintiff’s wheelchair cushions in a manner not specifically authorized in writing by plaintiff.
II.
A. Standard of Review
A preliminary injunction is an extraordinаry remedy that should not be granted unless the movant has demonstrated, by a clear showing: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that may result from the injunction to the non-movant; and (4) that the injunction will not undermine public interests.
Allied Mktg. Group, Inc. v. CDL Mktg., Inc.,
B. The Lanham Act
To determine the likelihood of success on the merits, we look to the standards provided by thе substantive law.
See Mississippi Power,
*359
The Lanham Act’s prohibitions against a false description or false designation of origin primarily extend to two types of activities: (1) thе false advertising of goods or services; and (2) “palming off,” which involves selling one’s goods under the name of a competitor.
Lamothe v. Atlantic Recording Corp.,
Reverse palming off occurs with the direct misappropriation of the servicеs or goods of another.
See id.
at 606-07 (director removed an actor’s name from the credits and advertising and replaced it with another actor’s name);
see also Truck Equip. Serv. Co. v. Fruehauf Corp.,
Traditional and reverse palming off activities have both been recognized as wrongful because they involve attempts to misappropriate another's talents.
La-mothe,
C. Roho’s Claim
Roho contends that Marquis engaged in reverse palming off by (1) “procuring] the basics of the Roho mattress” — the wheelchair cushions; (2) making “inconsequential modifications gluing them together to increase its size;” and (3) ultimately marketing “a product identical to the Roho mattress made only from Roho basic technology.” In essence, the company claims that because these actions produced a slightly modified version of the Roho mattress, which Marquis sold under his own label, he has violаted section 43(a) of the Lanham Act. Roho’s argument, however, raises certain analytic difficulties because this is not a traditional reverse palming off scenario. Marquis did not purchase a Roho mattress, remove the labels, and resell it with his own label. Rather, he purchased one Roho рroduct — the wheelchair cushions — and used them to copy another Roho product — the mattresses. It is further complicated by the fact that one of Roho’s products is patented, while the other is not. To clarify the analysis, it is useful at this point to note the precise actions about which Roho may or may not complain.
As the holder of a patent, Roho has, by statute, been granted a monopoly over the technology and the cushions.
Sears, Roebuck & Co. v. Stiffel Co.,
Marquis’ right to copy Roho’s unpatented product, the Roho mattress, also cannot be disputed. The common law has long recognized that an unpatented article “is in the public domain and may be made and sold by whoever chooses.”
Id.
at 231,
D. The Marquis Mattress
While in the abstract Marquis is permitted to copy the Roho mattress, the question here is whether by using Roho’s wheеlchair cushions to do so, he engaged in an unfair trade practice — namely reverse palming off. As noted above, reverse palming off involves reselling another’s product after removing or obliterating the original label and encompasses products that have been only slightly modified. There is no doubt that Marquis removed the labels from Roho’s products, which were modified in some manner, and then sold the resulting product under Marquis’ label. The issue is whether Marquis’ efforts merely produced a slightly modified Roho mattress that was then relabeled or whether, as Marquis contends, he created a new product to which he could properly apply his own label.
3
See Arrow,
In oral statements at the hearing, the district court determined that Marquis had not created a new product. It additionally concluded in its Supplemental Order and Reasons that there was a strong likelihood of consumer confusion that would lead to irreparable injury to Roho’s goodwill and reputation. The court found nothing in Marquis’ arguments to militate against issuing a preliminary injunction and accordingly shaped the relief outlined above in section I.
In its analysis, the district court seemed to focus on the similarity between the two mattresses to resolve the “new product” issue and dismissed Marquis’ modification of the cushions as trivial. We believe the comparison of the mattresses was misdirected. Because Roho is essentially claiming that Marquis purchased one of its products and then sold that product in a slightly modified form under a different label, the central comparison should be between the product Marquis purchased — the wheelchair cushions — and the product he ultimately marketed — the mattress. In our view, there is no question that, by making the mattress, Marquis created a new product in relation to the wheelchair cushions. He modified those cushions in a more than superficial manner by attaching them with the necessary glue and grommets to create a mattress. Additionally, the two products are commercially distinguishable, in that *361 they are generally marketed to different consumers for different purposes.
Nor can a comparison of the two mattresses support finding Marquis guilty of reverse palming off. Although the Marquis mattress is made of Roho components, it was actually created through Marquis’ efforts. It is not a Roho product and, regardless of some similarity between the two mattresses, cannot be considered a relabeled Roho mattress. Marquis’ conduct therefore cannot be characterized as reverse palming off.
In reaching this conclusion, we are mindful of the fact that Marquis’ actions smack of some unfairness — he is using a patented product to parallel an unpatented product, the benefit of which is primarily derived from the patented product. However, while Marquis “procured” that patented invention from Roho, he paid the price they asked and Roho profited from the sale. If Marquis can buy component parts from Roho and assemble them into a product at a price thаt is competitive with another of Roho’s products, that competition serves the public interest.
Roho seeks to undermine this competition argument by claiming that the alleged inferiority of Marquis’ mattress disserves the public interest. However, the marketplace will determine the validity of that claim аnd the value of the manufacturers’ respective products.
For the reasons stated above, we do not believe Marquis’ actions constituted reverse palming off and therefore hold that the district court erred in finding that Roho was substantially likely to prevail on the merits of its section 43(a) claim. As that finding is in error and the' court’s other conclusions regarding likelihood of confusion and irreparable harm cannot alone support the preliminary injunction, the injunction as written must be vacated.
See Calvin Klein,
If the district court later uncovers a different breed of trademark infringement and again finds a likelihood of consumer confusion, Marquis may be required to take affirmative steps to avoid confusion,
see B.H. Bunn Co.,
The injunction is VACATED.
Notes
. Decubitus ulcers result "from pressure to an area of the body from a bed or chair.” Taber’s Cyclopedic Medical Dictionary 375 (C. Thomas ed. 1981).
. Any person who shall affix ... or use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, ... shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any suсh false description or representation.
15 U.S.C. § 1125(a).
. Section 43(a) of the Lanham Act additionally prohibits the copying of products "if the features allegedly copied have acquired secondary meaning in the marketplace and are nonfunctional."
Vibrant Sales, Inc. v. New Body Boutique, Inc.,