TJOFLAT, Circuit Judge:
I.
Yellowfin Yachts, Inc. is a manufacturer of high-end fishing boats. Since 2000, Yellowfin has produced predominantly center-consoled, open-fisherman styled boats ranging between twenty-one and forty-two feet. According to Yellowfin, these boats all have the same swept sheer line, meaning a gently sloped s-shaped line that runs upward from the point at which a boats hull intersects with the deck to the boats lofted bow. This swept sheer line, described by Yellowfin as unique, is the subject of its trade dress claims.
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(Twenty-four-foot Yellowfin boat.)
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(Twenty-six-foot Yellowfin boat.)
Yellowfin hired Kevin Barker in 2006 as a vice president of sales. Although Yellowfin presented Barker with a proposed employment agreement which included confidentiality clauses, Barker never executed the agreement. Barker left Yellowfin in 2014-not encumbered by a noncompetition or nonsolicitation contract-and founded a competitor, Barker Boatworks, LLC. On his last day at Yellowfin, Barker downloaded hundreds of files from Yellowfins main server. These files contained detailed purchasing history and specifications for all of Yellowfins customers, as well as drawings and style images for Yellowfin boats and related manufacturing information.
After leaving Yellowfin, Barker retained marine architect Michael Peters to design a twenty-six-foot bay boat based on Barkers specifications. These specifications, according to Yellowfin, were derived directly from Yellowfins own bay boats, and the Barker boats sheer line nearly replicated that of Yellowfin. Barker Boatworks opened for business in July 2014 and has since competed with Yellowfin in the same niche center-console fishing-boat market.
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(Barker Boatworks Calibogue Bay boat.)
In April 2015, Yellowfin filed a complaint against Barker Boatworks and Kevin Barker in the United States District Court for the Middle District of Florida. With leave of court, Yellowfin filed its First Amended Complaint, the operative complaint here, in September. In this complaint, Yellowfin pleads claims for trade dress infringement and false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), common-law unfair competition, common-law trade dress infringement, and violation of Floridas Trade Secret Act.
After unsuccessfully moving to dismiss Yellowfins complaint, Barker Boatworks moved for summary judgment on all of Yellowfins claims. The District Court granted the motion in full. First, the Court provided three reasons why Yellowfins Lanham Act trade dress claim failed: Yellowfin did not adequately describe any distinctive feature of its sheer line, its sheer line is functional and thus not protectable as trade dress, and no reasonable jury could conclude that a potential buyer would likely confuse a Barker boat for a Yellowfin. The Court then held that, because a reasonable jury could not conclude that a potential buyer would likely confuse the two boats, Yellowfins claims of Section 43(a) false designation of origin, common-law trade dress infringement, and common-law unfair competition also fail. Finally, the Court found that Yellowfin failed to identify a protectable, misappropriated trade secret, and, regardless, that Yellowfin did not make reasonable efforts to protect all of its alleged trade secrets. The Court therefore rejected Yellowfins trade secret claim. Yellowfin appeals these rulings.
We review a district courts grant of summary judgment de novo and construe the evidence and draw all reasonable inferences therefrom in the light most favorable to Yellowfin. Ziegler v. Martin Cty. Sch. Dist. , 831 F.3d 1309, 1318 (11th Cir. 2016). We first address the District Courts trade dress rulings.
II.
Section 43(a) of the Lanham Act provides a cause of action for trade dress infringement. Kason Indus., Inc. v. Component Hardware Grp., Inc. , 120 F.3d 1199, 1203 (11th Cir. 1997). Trade dress is defined as the total image of a product, which may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques. John H. Harland Co. v. Clarke Checks, Inc. , 711 F.2d 966, 980 (11th Cir. 1983). A typical trade dress action involves a goods packaging or labeling, but the design of a product, or a feature of a product, may also constitute protectable trade dress. See id. The plaintiff must prove three elements to prevail on a trade dress claim: 1) its trade dress is inherently distinctive or has acquired secondary meaning, 2) its trade dress is primarily non-functional, and 3) the defendants trade dress is confusingly similar. AmBrit, Inc. v. Kraft, Inc. , 812 F.2d 1531, 1535 (11th Cir. 1986). We narrow our focus to the third requirement, likelihood of confusion, as we conclude that factor is dispositive in favor of Barker Boatworks.
Trademark laws familiar likelihood of confusion test is used to assess trade dress claims. See John H. Harland Co. , 711 F.2d at 981. We consider (1) the strength of plaintiffs trade dress, (2) the similarity of the products designs, (3) the similarity of the products themselves, (4) the similarity of the parties trade channels and customers, (5) the similarity of advertising media used by the parties, (6) the defendants intent, and (7) the existence and extent of actual confusion in the consuming public. Fla. Intl Univ. Bd. of Trustees v. Fla. Natl Univ., Inc. , 830 F.3d 1242, 1255 (11th Cir. 2016) ; AmBrit , 812 F.2d at 1538. We recognize that aspects of one factor will overlap with aspects of the others. Therefore, we do not decide which party is favored by each factor, tally up the score, and hold in favor of the party with the most points. We apply the factors holistically. That said, the existence and extent of actual confusion and the strength of the plaintiffs trade dress are, respectively, the most and second most important factors. Fla. Intl , 830 F.3d at 1256, 1264. Those factors have the strongest influence on the question the test was created to assess: the likelihood of consumer confusion.
Although likelihood of confusion is a question of fact, it may be decided as a matter of law. Tana v. Dantannas , 611 F.3d 767, 775 & n.7 (11th Cir. 2010). The role of the [district] court in reviewing a motion for summary judgment is to determine the ultimate question of whether, in light of the evidence as a whole, there is sufficient proof of a likelihood of confusion to warrant a trial of the issue. Id. at 775 n.7. Because we review the district courts decision de novo , using the same legal standards it employed, our role is effectively the same. See Ziegler , 831 F.3d at 1318.
Yellowfins primary argument is not that consumers are likely to accidentally purchase a Barker boat instead of a Yellowfin due to Barkers allegedly similar sheer line. Rather, its theory of confusion centers on confusion in the postsale context: consumers might see a Barker boat sporting a Yellowfin-like sheer line and mistakenly believe that boat to be a Yellowfin. See Custom Mfg. & Engg, Inc. v. Midway Servs., Inc. , 508 F.3d 641, 650 (11th Cir. 2007) (recognizing likelihood of confusion in the post-sale context as a viable basis for an action); Montgomery v. Noga , 168 F.3d 1282, 1301 n.32 (11th Cir. 1999) ([P]resale confusion of actual purchasers is not the only type of confusion actionable under the Lanham Act.). We apply the factors with that theory in mind and ultimately hold that, as a matter of law, no reasonable jury could find a likelihood of confusion between the Barker and Yellowfin boats.
A. Strength of Yellowfins Trade Dress
The District Court reasoned that because sweeping sheer lines are ubiquitous in the center-console fishing-boat market, Yellowfins purportedly distinctive feature deserves little protection. Indeed, Wylie Nagel, Yellowfins founder, conceded that several other boats have a sweeping sheer line. Thus, the District Court concluded, Yellowfins sheer line is weak trade dress.
Yellowfin pushes back on this reasoning, contending that even though sweeping sheer lines are common among fishing boats, its sweeping sheer line stands out from those of other boats-it is unique and, to consumers, synonymous with Yellowfins high-quality boats. Yellowfin provides the following excerpts from boating magazines to support this point:
• Yellowfin Yachts has earned a reputation for producing some of the most jaw-dropping center-console fishing machines on the market, with good looks and sleek design that are easily recognizable, even from far distances.
• Ever wonder if you took the logos off many boats today whether youd still be able to tell them apart? Youll never have difficulty discerning a Yellowfin. From the proud bow to the sweeping sheer, a Yellowfin is unmistakable.
• Looking at this 29-footers profile, you cant possibly mistake it for anything but a Yellowfin with its distinctive proud bow and dramatically sloping sheer line.
These excerpts, however, hardly bolster Yellowfins argument. The first simply describes Yellowfin boats as sleek and easily recognizable. Although Yellowfins sheer line might contribute to the sleekness and, to an extent, the recognizability of its boats, the excerpt leaves this to inference. And it takes quite an inferential leap to connect this excerpt, which makes no reference to the sheer line, to Yellowfins claim that its sheer line-one among many in the market-is so unique as to be synonymous with its product. The second excerpt is more probative. It homes in on the sweeping sheer lines ability to signify a Yellowfin boat. But it also attributes recognizability to the proud bow of Yellowfin boats, which is not part of the claimed trade dress, and seemingly to other unnamed features as well, stating, From the proud bow to the sweeping sheer, a Yellowfin is unmistakable. (Emphasis added). Finally, the third excerpt mentions only the proud bow and dramatically sloping sheer line of a twenty-nine-foot Yellowfin boat. As with the proud bow, the dramatically sloping portion of Yellowfins sheer line is not part of its trade dress claim. Thus, the third excerpt says nothing about the trade dress at issue in this case. Overall, even construed in the light most favorable to Yellowfin, these excerpts provide little support for Yellowfins claim that its sweeping sheer line is particularly strong trade dress.
Aside from these excerpts, Yellowfin presents as evidence Naglers declaration, in which he stated that he sought to create boats that would have a unique and enduring style, that Yellowfin thus heavily markets its boats showing off the sheer line, and that Yellowfin customers comment on, and identify the Yellowfin sheer line.
A self-serving declaration may create an issue of material fact and preclude summary judgment even if ... uncorroborated. United States v. Stein , 881 F.3d 853, 854 (11th Cir. 2018) (en banc). But that is not to say that such a declaration will necessarily preclude summary judgment. Id. at 859. Naglers statements do not focus on the signifying effect-i.e. , the strength-of the Yellowfin sheer line. Rather, he merely relays that he intended to create boats with a unique and enduring style, that Yellowfin heavily advertises its boats and sometimes the advertisements refer to the sheer line directly, and that customers mention the sheer line. These statements fail to support the proposition that Yellowfins sheer line causes consumers to associate the sheer line with its source, bringing to their minds the high-quality boats manufactured by Yellowfin.
In short, Yellowfin presents little evidence meaningfully supporting the strength of its trade dress. The effect of this shortcoming is amplified by the fact that many other boats in the relevant market have a sweeping sheer line. Cf. Fla. Intl , 830 F.3d at 1257-58 (noting that the strength of [Florida International Universitys] word mark and [FIU] acronym was naturally mitigated by operat[ing] in a crowded field of similar names and acronyms used by other Florida universities); Sun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Assn , 651 F.2d 311, 315-16 (5th Cir. 1981) (explaining that extensive third-party use of a particular word in plaintiffs trademark counsels against likely confusion). Even relatively weak trade dress, though, may be entitled to a narrow range of protections. See Fla. Intl , 830 F.3d at 1260. We thus continue our inquiry.
B. Similarity of the Products Designs
The second likelihood of confusion factor focuses on the overall impression of the two products at issue. AmBrit , 812 F.2d at 1540. The District Court stated that Yellowfin and Barker Boatworks sell a product generally similar in appearance, but noted that several prominent differences permit a potential buyer to distinguish a Barker from a Yellowfin. First, both Yellowfin and Barker Boatworks prominently display their respective logos, which look nothing alike, on their boats. Further, a Barkers hull differs from that of a Yellowfin, and Barker omits the rolled transom typical of most Yellowfin models. Finally, citing Naglers deposition, the District Court added plainly that the layout of each boat is different. These differences, the Court stated, will preclude a potential buyer[ ] [from] mistaking a Barker for a Yellowfin.
Yellowfin argues that the District Court erred by failing to address the actual Yellowfin trade dress-its unique sheer line. Had the District Court done so, Yellowfin continues, it would have found that the two sheer lines at issue are similar. Yellowfin concludes that the similarity between the sheer lines, combined with the Courts statement that both boats are generally similar in appearance, tips this second likelihood of confusion factor in its favor.
Although Yellowfins argument is weakened by the differences between its boats and those of Barker Boatworks-especially the different, prominently displayed logos-the mere presence of a distinguishing logo or other feature does not in all cases alleviate a likelihood of confusion. See Levi Strauss & Co. v. Blue Bell, Inc. , 632 F.2d 817, 822 (9th Cir. 1980) ([N]othing of record indicates that the mere presence of [the defendants] word mark avoids a likelihood of confusion.). But see L.A. Gear, Inc. v. Thom McAn Shoe Co. , 988 F.2d 1117, 1134 (Fed. Cir. 1993) (stating that the conspicuous and permanent labeling on the parties respective products avoided postsale consumer confusion). We more thoroughly engage with this principle infra , when discussing the actual confusion factor. For now, it suffices to say that the product design factor favors Yellowfin, but this factors value is almost completely washed out by our actual confusion analysis below.
C. Similarity of the Products
Both parties manufacture high-end, center-console fishing boats of a similar size. This factor favors Yellowfin.
D. The Similarity of the Parties Trade Channels and Customers
Neither Yellowfin nor Barker Boatworks sells boats through a retail outlet; both sell directly to customers. This necessarily means that the parties operate in different trade channels, as a customer must contact either Yellowfin or Barker Boatworks directly to purchase a boat. The dissimilarity of trade channels, however, is mostly irrelevant given that Yellowfins primary theory of likelihood of confusion applies to potential consumers postsale .
The two manufacturers compete in the same niche market and thus have similar customers. But having similar customers does not necessarily favor Yellowfin. These are customers in the market for a high-end, expensive fishing boat. As such, they are likely more discerning-and so less easily confused-than customers purchasing everyday products. See Fla. Intl , 830 F.3d at 1256 (noting that sophisticated consumers of complex goods are less easily confused than casual purchasers of small items). We expand upon the effect that consumers sophistication has on Yellowfins theory in our discussion of actual confusion below.
E. The Similarity of Advertising Media Used by the Parties
As to this factor, the District Court stated the following:
Barker and Yellowfin concededly advertise in several of the same forums, including the magazines SaltWater Sportsman and Sport Fishing . Also, both companies attend the same boat shows, for example, Miami, Palm Beach, and Fort Lauderdale. The similarity of advertising forums might contribute to confusion, although the absence from the record of Barker advertisements prevents comparing the parties advertisements. See AmBrit , 812 F.2d at 1542 (explaining that the similarity of advertising evaluates whether the parties advertise in similar forums and whether the advertisements appear similar).
(Record citations omitted). In its brief, Yellowfin emphasizes the first part of this statement; Barker Boatworks brief emphasizes the latter part. This factor favors Yellowfin for purposes of summary judgment, as we may reasonably infer that similar advertising contributes, however little, to consumer confusion. See AmBrit , 812 F.2d at 1542 (If the plaintiff and defendant both use the same advertising media, a finding of likelihood of confusion is more probable.).
F. Barkers Intent
The District Court found that the record contains no evidence that Barker copied Yellowfins design in an attempt to confuse a potential buyer. Yellowfin disagrees, contending that the Court did not construe the record, as it must on summary judgment, in a way that takes the plaintiffs best case. See Stephens v. DeGiovanni , 852 F.3d 1298, 1313-14 (11th Cir. 2017). Yellowfin adds that a defendants intent is generally a credibility question that cannot be decided on summary judgment.
More specifically, Yellowfin argues that because Barker had significant business dealings with Yellowfin and took customer information with him upon leaving Yellowfin, an inference of intent readily arises. See AmBrit , 812 F.2d at 1543 n.61. Further, Yellowfin adds that to successfully compete in the same niche market as Yellowfin, Barker Boatworks copied Yellowfins sheer line, aware that the sheer line had garnered extensive favorable press. Finally, Yellowfin points out that an employee of Michael Peters, the marine architect Barker Boatworks employed to design its bay boat, met with Barker in June 2014 and left with design notes containing a notation to look at 24 Yellowfin. The employees notes also contained several sketches of plans for the Barker boat, one of which was titled Yellowfin 24. All of this, Yellowfin contends, is enough to create a material factual issue as to intent.
In response, Barker Boatworks points out that notes from the June 2014 meeting also show that Barker did not care for the Yellowfin hull and sheer line appearance, evidenced by his comment that Yellowfins look [too] much offshore and have too much fla[ir]. Barker Boatworks adds that several competing bay boats other than Yellowfin were also mentioned at the meeting. Yellowfin, Barker Boatworks contends, seeks to improperly infer intent from mere references to Yellowfin and from prior business dealings. Moreover, the District Court made no credibility finding because there was no dispute in the record about the meaning of any relevant testimony or the meeting notes.
There is a difference between intentional copying and intentional copying with intent to cause confusion . See Brooks Shoe Mfg. Co. v. Suave Shoe Corp. , 716 F.2d 854, 859 n.13 (11th Cir. 1983). This distinction is an important one. If a defendant intentionally copies an aspect of the plaintiffs product, but not with intent to confuse consumers, then the defendants intent has little bearing on the ultimate question: whether the allegedly infringing product is likely to confuse consumers. See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:110 (5th ed. 2017) ([T]he only kind of intent that is relevant to the issue of likelihood of confusion is the intent to confuse.). Strictly, intent, or lack thereof, does not affect the eyes of the viewer. Chrysler Corp. v. Silva , 118 F.3d 56, 59 n.3 (1st Cir. 1997). But when a defendant copies a design intending to cause confusion, a tenable inference may be drawn that this will cause confusion in fact; the defendants very action indicates that it expects consumer confusion. Fleischmann Distilling Corp. v. Maier Brewing Co. , 314 F.2d 149, 158 (9th Cir. 1963) ; McCarthy, supra , at § 23:110. In this latter instance, we may presume that the defendant adopt[ed] a mark or design with the intent of deriving benefit from another persons mark and deny the defendants summary judgment motion. Brooks , 716 F.2d at 860 n.13 (internal quotation marks omitted).
In sum, proof of intentional copying alone is not conclusive on the likelihood of confusion issue. Id. The plaintiff must put forth some evidence showing that the defendants copying was done with intent to confuse consumers.
Viewing the evidence in Yellowfins favor allows us, at most, to infer that Barker Boatworks intended to copy some aspects of Yellowfins boats in order to construct a worthy competitor in a niche market. That is Yellowfins best case. See Stephens , 852 F.3d at 1313-14. But evidence that a junior user copies a competitors product design because it sells better and consumers seem to like it ... is not evidence of an intent to confuse. McCarthy, supra , at § 8:19. The District Court properly concluded that Yellowfin put forth no evidence showing Barkers intent to copy Yellowfins sheer line in order to deceive consumers as to the source of Barker Boatworks boats-i.e. , to cause consumer confusion.
G. Actual Confusion
Finally, the District Court found that Yellowfin failed to present any evidence of actual confusion. The Court stated that Yellowfin did not identify a customer who mistakenly bought a Barker instead of a Yellowfin. Further, the Court noted, the high price tags attached to center-console fishing boats likely encourage consumers to exercise a high degree of care when purchasing a boat. Therefore, a similar sheer line will not reasonably cause a customer to mistakenly purchase a Barker instead of a Yellowfin. The Court then briefly addressed postsale confusion, stating that postsale confusion requires a showing that the junior product is inferior in craftsmanship to the senior product. The Court noted that Yellowfin produced only an unsubstantiated boast by Nagler in his deposition testimony that Yellowfins are far superior in quality to Barkers. On the other hand, several former Yellowfin customers-who had first-hand experience of Yellowfins craftsmanship and were likely to investigate that of Barker Boatworks before investing in another boat-bought a Barker. Thus, because Yellowfin did not present evidence sufficient to show Barker boats were of a lesser quality, the Court halted its analysis of postsale confusion.
Yellowfins appellate brief initially presents a point-of-sale-type theory of confusion, arguing that Nagler, in his deposition, identified four potential customers whose business he lost to Barker and further maintained that theres probably another handful. But, as the District Court pointed out, Nagler did not attribute these lost sales to confusion, much less confusion derived from the similarity of the sheer lines specifically. Rather, it was general similarity in the boats designs that led to the loss of sales.
Perhaps recognizing the weaknesses of a point-of-sale theory of confusion, Yellowfin ultimately contends that, primarily, [t]his is a post -sale confusion case. That is, the point at which the likelihood of confusion would be most likely to occur is after the sale of a Barker boat, when the relevant audience is the purchasing public. Yellowfin argues that the District Court erred by imposing a requirement that Yellowfin prove Barker boats to be of inferior quality. Because this is not a threshold requirement to proving postsale confusion, Yellowfin continues, the Court never addressed its postsale-confusion theory. If it had, Yellowfin concludes, it could not have granted summary judgment because there is a triable issue of fact about whether Barkers sheer line is likely to confuse potential purchasers in the postsale context.
Boiled down, Yellowfins theory is this: its unique sheer line is instantly recognizable to potential purchasers. Upon seeing a Barker with a similar sheer line, potential purchasers become confused-they mistakenly believe that the boat they see is a Yellowfin or is associated with Yellowfin. This, in turn, has damaged the goodwill associated with Yellowfins brand and has diverted consumers from Yellowfin, causing lost profits.
Actual consumer confusion is the best evidence of likelihood of confusion. AmBrit , 812 F.2d at 1543. We review this factor holistically; there is no precise number of instances of actual confusion sufficient to establish the factor. Id. Although it takes very little evidence to establish the existence of the actual confusion factor, id. at 1544, the evidence adduced must be more than nominal, Tana , 611 F.3d at 779. Further, [l]ikelihood of confusion is synonymous with probable confusion-it is not sufficient if confusion is merely possible. McCarthy, supra , at § 23:3 (citing Shatel Corp. v. Mao Ta Lumber & Yacht Corp. , 697 F.2d 1352, 1355 n.2 (11th Cir. 1983) ). That a junior users trade dress merely calls to mind that of the senior user, moreover, is not an infringement. Id. at § 23:5.
Yellowfin is correct that this Courts precedent does not require a threshold showing that the defendants product is inferior in quality. And we do not impose such a requirement today. That notwithstanding, the record is devoid of evidence indicating a probability of postsale confusion among potential purchasers. Yellowfin effectively argues that the District Court should have inferred from the strength of its trade dress alone-which, as discussed, is suspect-actual confusion in the postsale context. But, without any evidence corroborating its postsale confusion theory outlined above, Yellowfin cannot defeat summary judgment. See Libman Co. v. Vining Indus., Inc. , 69 F.3d 1360, 1363 (7th Cir. 1995) (A finding of likely confusion can no more be based on pure conjecture or a fetching narrative alone than any other finding on an issue on which the proponent bears the burden of proof.).
Indeed, the market in which Yellowfin competes and the potential purchasers therein make its theory of postsale confusion unlikely . Yellowfin repeatedly mentions that it and Barker Boatworks compete in the same niche market of center-console fishing boats. We may infer that potential purchasers of products in this market are relatively sophisticated. See Groeneveld Transp. Efficiency, Inc. v. Lubecore Intl, Inc. , 730 F.3d 494, 510-11 (6th Cir. 2013) (noting the relationship between a products complexity and price and the sophistication of its consumers). In fact, Yellowfins theory of postsale confusion depends upon sophisticated consumers. Yellowfin recognizes that that every bay boat has a sloping sheer line as a key element of its design. (Emphasis removed). But in designing a sloping sheer line, Yellowfin posits, a designer employs creativity with highly nuanced refinements so that his sheer line will differ from the others-that is precisely what Mr. Nagler did in designing the Yellowfin sheer line. A lay consumer unfamiliar with bay boats would be unlikely to notice the highly nuanced refinements of Yellowfins sheer line and match the sheer line with the brand. Only a discerning, sophisticated consumer would be able to do so. Yellowfins theory thus holds water only in a scenario involving a sophisticated potential purchaser.
However, without any corroborating evidence, it is unreasonable to infer that this discerning potential purchaser-familiar enough with the crowded bay-boat market to distinguish Yellowfins sloping sheer line from the numerous others-would see a Barker and become confused despite the Barkers prominent and distinct logo, differing hull, and other dissimilar features. See id. at 509-11 (stating that the starkly different logos on two expensive products and the the high degree of care presumably exercised by the [products] sophisticated consumers compels the conclusion that the plaintiff, as a matter of law, failed to raise a triable issue as to likelihood of confusion). Perhaps the Barker sheer line would call[ ] to mind that of a Yellowfin, but that is not an infringement. See McCarthy, supra , at § 23:5. Yellowfin has failed to establish that the Barker sheer line has actually confused potential purchasers in the postsale context.
* * *
Weighing the likelihood of confusion factors holistically, we conclude that the District Court did not err in holding that Yellowfin could not, as a matter of law, prove a likelihood of confusion between Barker Boatworks trade dress and its own. We therefore also hold that the District Court properly rejected the rest of Yellowfins claims related to trade dress and consumer confusion. We turn now to Yellowfins remaining trade secret claim.
III.
The Florida Uniform Trade Secrets Act (FUTSA) provides a cause of action for the misappropriation of trade secrets. Fla. Stat. §§ 688.001 -009. To prevail on a FUTSA claim, a plaintiff must demonstrate that (1) it possessed a trade secret and (2) the secret was misappropriated. Advantor Sys. Corp. v. DRS Tech. Servs., Inc. , 678 F. Appx 839, 853 (11th Cir. 2017) (citing Fla. Stat. § 688.002 ; Am. Red Cross v. Palm Beach Blood Bank, Inc. , 143 F.3d 1407, 1410 (11th Cir. 1998) ). Under FUTSA, a trade secret is
information, including a formula, pattern, compilation, program, device, method, technique, or process that:
(a) 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
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Fla. Stat. § 688.002(4). Misappropriation, generally, is defined as the acquisition of a secret by someone who knows or has reason to know that the secret was improperly obtained or who used improper means to obtain it. Advantor , 678 F. Appx at 853 ; see Fla. Stat. § 688.002(2).
Yellowfin claims two sets of information, both allegedly misappropriated by Barker, as trade secrets: Source Information and Customer Information. We start with the former.
A.
Yellowfin describes its Source Information in the following manner:
In the course of building Yellowfins boats, the company requires and incorporates into its boats materials and components from various sources. Yellowfin considers its sources, the contracts it has with those sources and the terms and conditions of those contracts as trade secrets.[ ]
This information, Yellowfin contends, is valuable to its business and provide[s] a competitive edge to the company.
The District Court rejected Yellowfins Source Information trade secret claim, providing a number of reasons supporting its conclusion that no reasonable jury could find the Source Information to constitute a trade secret. First, the Court held that the identities of Yellowfins suppliers are typically well known-indeed, the photos in the record show that many [of the suppliers] prominently brand their products. The Court also noted that Nagler conceded in his deposition that a suppliers identity is not a trade secret. Thus, the Court determined, the identities of Yellowfins suppliers did not qualify as a trade secret.
Next, the Court concluded that the prices Yellowfin negotiated with its suppliers were also not trade secrets. The Court gave three reasons. First, the negotiated prices were based on the volume of Yellowfins boat production. That is, Yellowfin produced enough boats to secure lower prices than a smaller boat company could. Nagler confirmed as much, stating, [A] company ... the size of [Barkers] wouldnt be able to make the deals that I make with my vendors. The Court therefore held that [i]nformation about a volume discount lacks independent economic value to a producer too small to secure the discount. Second, the Court pointed out that Yellowfin stated that its discounts were based in part on the relationships it cultivated with its vendors over the course of a number of years. Information about these relationship-based discounts, the Court stated, lacks independent economic value to a newly established manufacturer. Finally, the Court held that Yellowfins claim also failed because Barker learned Yellowfins production costs in the ordinary course of working at Yellowfin. Thus, even if Barker could secure a supplier discount similar to Yellowfins, an injunction could not practicably restrain Barker from using the knowledge he gained while employed at Yellowfin.
In its appellate briefing, Yellowfin challenges none of these conclusions. Nor does it identify any issues of material fact underlying the District Courts determinations. Rather, Yellowfin only mentions summarily that its Source Information qualifies as a trade secret and that the District Court erred by conducting a fact-bound inquiry, better left for a jury, when determining otherwise. Although we recognize that whether something is a trade secret is a question typically resolved by a fact finder after full presentation of evidence from each side,
Lear Siegler, Inc. v. Ark-Ell Springs, Inc. , 569 F.2d 286, 288-89 (5th Cir. 1978), Yellowfin fails to provide any reason why, in this case, the District Court erred in concluding that no reasonable jury could find that the Source Information constituted a trade secret. And, after reviewing the record, we fail to find any evidence suggesting that the District Court erred.
B.
Yellowfin does, however, extensively contend that the District Court erred in determining that no jury could reasonably find that its Customer Information constituted a trade secret. Yellowfins Customer Information is comprised of information that it has collected and stored about each of its customers, including personal identifying information such as the persons name, address, contact information, and other information related to the customers purchase.
The District Court provided two independent reasons for rejecting Yellowfins Customer Information trade secret claim. It first noted that Florida Statutes § 328.48(2) requires vessel owners to register their vessels with the state, and the Public Records Act requires the state to openly provide registration information, including registrants names and addresses. With a registrants name and address, the Court stated, a person can use the Internet or the White Pages to find the registrants contact information. Because the Customer Informations core contents are publicly available, the Court found that the information could not be a trade secret.
The District Court then held that even if the Customer Information was not publicly available, Yellowfin could not prove FUTSAs second trade secret requirement: that the information was the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Fla. Stat. § 688.002(4). Although Yellowfin protected its Customer Information by limiting employee access to it and maintaining it on a password-protected computer system, Yellowfin nonetheless encouraged Barker to store [the] information on a personal laptop and phone. Yellowfins security measures were thus useless once it unrestrictedly relinquished the Customer Information to Barker. The Court also stressed that Yellowfin never asked Barker to delete the information from his personal devices after he left the company. Based on these facts, the Court concluded that no reasonable jury could find that Yellowfin engaged in reasonable efforts to secure the Customer Information.
Yellowfin contends that the District Court erred on both points. First, the Customer Information includes more than what one may derive from Floridas public vessel-registration records. In addition to names and addresses, the Customer Information contains detailed purchasing history, including the specifications customers requested when ordering their boats. Further, Yellowfin argues that uniquely compiling or distilling information, even if some of which is publicly available, adds value to the information and may render it a trade secret. See Capital Asset Research Corp. v. Finnegan , 160 F.3d 683, 686 (11th Cir. 1998).
As to its reasonable efforts to maintain the Customer Informations secrecy, Yellowfin states that the information is held within its computer system which requires a username and password to access, is accessible by fewer than five percent of the companys employees, and is not accessible by or shared with third parties. Yellowfin also maintains that there was an implicit understanding between Yellowfin and Barker that its Customer Information was confidential and not to be disclosed outside Yellowfin or used for any purpose other than to benefit the company.
Exercising our liberty to affirm on any basis in the record, United States v. Hall , 714 F.3d 1270, 1271 (11th Cir. 2013), we affirm the District Courts rejection of Yellowfins Customer Information trade secret claim because Yellowfin failed to reasonably protect the information. Yellowfin limiting employee access to the information and password-protecting the computer network on which the information resided were positive steps in securing the alleged trade secret. See, e.g. , VAS Aero Servs., LLC v. Arroyo , 860 F.Supp.2d 1349, 1359 (S.D. Fla. 2012) (noting these measures as influential in reasonably securing trade secrets). But Yellowfin compromised the efficacy of these measures by encouraging Barker to keep the Customer Information on his cellphone and personal laptop. Cf. Diamond Power Intl, Inc. v. Davidson , 540 F.Supp.2d 1322, 1333-35 (N.D. Ga. 2007) (finding significant plaintiffs failure to prevent its employees from transferring a file allegedly constituting a trade secret to their personal computers). Indeed, Barker refused to sign an employment agreement which stated that he would, among other things, keep all Yellowfin trade secrets in confidence. Further, Yellowfin neither marked the Customer Information as confidential nor instructed Barker to secure the information on his personal devices. And when Barker left Yellowfin, the company did not request that Barker return or delete any of the information.
Thus, at bottom, Yellowfins efforts to secure the Customer Information rest upon a purported implicit understanding between Yellowfin and Barker that the information was to be kept confidential. Although Florida law recognizes implied confidential relationships sufficient to trigger trade secret liability, this Court is wary of any trade secret claim predicated on the existence of such a relationship. Bateman v. Mnemonics, Inc. , 79 F.3d 1532, 1550 (11th Cir. 1996). Yellowfin cites part of Naglers Declaration as evidence of this relationship:
Yellowfin employees, including Kevin Barker, understand, or should understand, that the companys Customer Information is confidential and proprietary to Yellowfin, because I personally have verbalized this policy and restriction to Yellowfin employees. On several occasions, Yellowfin was approached by outside companies desiring to gain access to [this information].... Each time this happened, I expressly rejected such offers and told my employees, including Kevin Barker, that such information would never be sold or shared with outside companies."
Other than Naglers general verbal statements warning employees not to share its Customer Information with third parties, Yellowfin references no evidence corroborating the implicit confidential relationship between it and Barker.
In sum, with mere verbal statements that the Customer Information should not be given to outsiders, Yellowfin relinquished the information to Barker, who refused to sign a confidentiality agreement , with no instruction to him as to how to secure the information on his cellphone or personal laptop. In doing so, Yellowfin effectively abandoned all oversight in the security of the Customer Information. Accordingly, the District Court did not err in determining that no reasonable jury could find that Yellowfin employed reasonable efforts to secure the information.
IV.
In light of the foregoing, we affirm the District Courts grant of summary judgment in favor of Barker Boatworks.
AFFIRMED.
Yellowfin also produces a seventeen-foot flats boat. Its flats boat lacks the sheer line at issue.
The sheer line for which Yellowfin is claiming trade dress protection here does not include the dramatically sloped portion appearing at the stern of the twenty-six-foot Yellowfin pictured below.
Barker claims that he did so to ensure that he was properly compensated through commissions.
For ease of reading, we generally do not distinguish between the two defendants and we refer to them interchangeably.
Yellowfin also claims that the defendants violated Floridas Trade Secret Act pursuant to a conspiracy.
We note that Yellowfins trade secret claim could conceivably have been pleaded as a conversion claim, as Barker essentially stole a bundle of Yellowfins information and data-whether this information was a trade secret or not-on his way out. Conversion is an act of dominion wrongfully asserted over anothers property inconsistent with his ownership therein. United Techs. Corp. v. Mazer , 556 F.3d 1260, 1270 (11th Cir. 2009) (quoting Thomas v. Hertz Corp. , 890 So.2d 448, 449 (Fla. Dist. Ct. App. 2004) ). Under Florida law, a conversion action can be brought related to the copying of a non-rival good, such as a confidential customer list. See Warshall v. Price , 629 So.2d 903, 905 (Fla. Dist. Ct. App. 1993) (recognizing a conversion claim where the defendant copied and took, but did not delete or otherwise deprive the plaintiff of, plaintiffs confidential patient list).
[A]s all three elements are necessary for a finding of trade dress infringement, any one could be characterized as threshold. Dippin Dots, Inc. v. Frosty Bites Distribution, LLC , 369 F.3d 1197, 1202 (11th Cir. 2004) (alteration in original) (quoting Epic Metals Corp. v. Souliere , 99 F.3d 1034, 1039 (11th Cir. 1996) ). Because we conclude that the District Court properly held that no reasonable jury could find that Barker Boatworks trade dress would likely confuse the purchasing public, we do not address the other two requirements.
Supra note 2.
This last point is hearsay. Yellowfin offers Naglers out-of-court statement relaying what consumers have said for the truth it asserts-that customers comment on and identify Yellowfins sheer line. See Fed. R. Evid. 801(c). The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment. Macuba v. Deboer , 193 F.3d 1316, 1322 (11th Cir. 1999) (internal quotation marks and footnote omitted).
The transom is the backmost section of a boat that connects the port and starboard sections of the hull-where a boats name is typically displayed. A rolled transom is as opposed to a straight transom. The twenty-six-foot Yellowfin pictured above has a rolled transom, while the twenty-four-foot Yellowfin and the Barker boat pictured do not.
Yellowfin cites back to the magazine excerpts quoted supra . As discussed, these excerpts do little to prove the strength of Yellowfins sheer line as trade dress.
Elsewhere in his deposition, Nagler stated that he had never ridden in a Barker boat but that he assume[d] Barker boats were pretty close to Yellowfins in quality.
In his deposition, Nagler summarily stated that Barkers copying of Yellowfins sheer line specifically caused the lost customers. But, immediately after making this statement, Nagler also attributed the lost customers to Barker giving customers a lower price than Yellowfin could offer and to the relationship that [a former Yellowfin customer] had with [Kevin Barker]. Either way, he did not testify that confusion caused the lost sales.
The Tana Court found nominal an affidavit by a patron of plaintiffs restaurant stating he patronized defendants restaurant because similarity in the restaurants names led him to believe they were affiliated, and defendants admission that customers had twice inquired about an affiliation between the restaurants. 611 F.3d at 779. It accordingly affirmed the district courts grant of summary judgment in favor of defendant. Id. at 783.
The District Courts error on this point does not necessitate a remand to further address Yellowfins postsale-confusion theory. See Dippin Dots , 369 F.3d at 1207-08 (stating that a district courts failure to consider all the factors relevant to the issue of whether two marks are confusingly similar does not necessarily constitute reversible error (internal quotation marks omitted) ).
We note that the quality of a defendants product is relevant to the harm suffered by the plaintiff. The classic situation of postsale confusion occurs when an observer sees the defendants inferior product and because of similar ... trade dress, mistakenly thinks it is a product of plaintiff, damaging plaintiffs reputation and image. McCarthy, supra , at § 23:7 ; see United States v. Torkington , 812 F.2d 1347, 1353 (11th Cir. 1987) (stating, with regard to counterfeit goods, that a trademark holders ability to use its mark to symbolize its reputation is harmed when potential purchasers of its goods see unauthentic goods and identify these goods with the trademark holder). This damage to reputation and image is naturally mitigated when an observer mistakenly associates a product of similar quality with the plaintiff. Thus, although Yellowfins lack of proof of the Barker boats inferiority is not dispositive of the actual confusion factor on summary judgment, it raises the question of what, if any, negative effect postsale confusion could have on Yellowfins reputation and image. We need not answer that question here.
Yellowfin proffered a survey to support its position on likelihood of confusion. The District Court, however, excluded the survey due to several methodological flaws. That ruling is not an issue on appeal.
Naglers own testimony, moreover, does not support Yellowfins postsale-confusion theory. Consider the following exchange at his deposition:
Q. Okay. Have there been any-anybody thats come to you with confusion between Barker and Yellowfin?
A. Several people have come to me with discussions about how [Barker] copied our styling and our sheer line of the boat and, you know, felt it was wrong.
True, you know, did they come in confused between the two brands? Well, they know who Yellowfin is. They dont know who Barker is, but they know when they see that [Barker] boat on the water, it looks like a Yellowfin.
Q. And who was that?
A. Customers call us all the time, people on the Internet. Theres plenty of documentation all over the Internet. Go to any of the forums.
Nagler then identified specific customers who expressed to him that Barker copied Yellowfins style or stated that they could not tell the two boats apart. When asked if any customer was confused, Nagler responded, I would think copying and confusion [are] the same. Nagler then stated, If you took the sticker off the back of [a Barker], you would probably be confused. After this, Nagler clarified that Yellowfins claim was limited to the copying of its sheer line and agreed that several features of the Barker boat differed from Yellowfins boats.
To the extent it is offered for the truth it asserts, Naglers testimony relaying the statements of the [s]everal people who expressed to him that Barker copied Yellowfin is inadmissible hearsay. See Fed. R. Evid. 801(c). Regardless, nothing in this exchange indicates that people were confused by Barkers sheer line. Nagler testified in effect that people believe Barker copied Yellowfins boat styling, that confusion would be caused if the logo were removed from a Barker, and that the boats have many dissimilar features. Copying is not the same as confusion, as Nagler suggests. And Yellowfin presents no evidence showing that potential purchasers have observed Barker boats stripped of their logo. At best, Naglers testimony could be construed to support the proposition that seeing a Barker might call the Yellowfin brand to a consumers mind. This, however, is not tantamount to confusion. McCarthy, supra , at § 23:5.
In opposition to Barker Boatworks summary judgment motion, Yellowfin also argued that its Source Information included drawings and other customer and supplier information not identified in its complaint. The District Court properly declined to address this argument in its decision granting Barker Boatworks summary judgment, citing Gilmour v. Gates, McDonald & Co. , 382 F.3d 1312, 1315 (11th Cir. 2004), for the proposition that a plaintiff cannot amend its complaint through argument in a brief opposing summary judgment. Thus we also consider the Source Information only to include the contents quoted above.
See Am. Red Cross , 143 F.3d at 1410 (stating that an employer cannot preclude a former employee from utilizing contacts and expertise gained during his former employment (internal quotation marks omitted) ); see also Renpak, Inc. v. Oppenheimer , 104 So.2d 642, 645 (Fla. Dist. Ct. App. 1958) (Skill and knowledge are assets gained by an employee which are transferable to his future use in business.... It is impossible to leave them behind so long as they exist within the mind of the employee.).
Yellowfin also summarily states that an implicit confidential relationship between it and Barker precluded Barker from using any confidential information, including the Source Information, for purposes other than benefitting Yellowfin. We address and reject this point infra .
According to Naglers declaration, the cellphone used by Barker was paid for by Yellowfin.
Diamond Power related to the Georgia Trade Secret Act which, like FUTSA, requires efforts that are reasonable under the circumstances to maintain [a trade secrets] secrecy. O.C.G.A. § 10-1-761(4)(B).
Because Yellowfin cannot identify an allegedly misappropriated trade secret meeting both definitional parts of Florida Statutes § 688.002(4), its FUTSA-predicated conspiracy claim also fails. See supra note 5.