the availability of the MD-2 variety to the public does not undermine Del Monte’s Lanham Act claim. Although the Eleventh Circuit has not addressed this issue, the former Fifth Circuit has held that an unpatented article of commerce is subject to Lanham Act protectio s., Inc., 7 F.3d 1434, 1437 (9th Cir.1993) (stating that, even though plaintiffs unpatented lathes were in public domain, a defendant may be guilty of reverse palming off by modifying plaintiffs product for sale and labeling it with defendant’s name); Roho, Inc. v. Marquis, 902 F.2d 356, 360 (5th Cir.1990) (entertaining reverse palming off claim where defendant copied plaintiffs unpat-ented mattress but ruling for defendant on merits); c.f. Hypertherm, Inc. v. Precision Products, Inc., 832 F.2d 697, 700-01 (1st Cir.1987) (<HOLDING>); G.D. Searle & Co. v. Hudson Pharm. Corp., 715
holding that defendant who had copied plaintiffs swath was not liable for reverse palming off where it represented to public that its swaths were interchangeable with those of plaintiff recognizing that the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material holding that defendant who had copied plaintiffs perfume formula had a right to market it under defendants name because it identified to public plaintiffs product as competition holding that the third factor disfavored fair use because the defendant copied a qualitatively substantial portion of the original work even though the defendants copied only approximately 300 words out of the 200000 words in the plaintiffs work holding that plaintiff had established reverse palming off claim against defendant who modified plaintiffs seeds after obtaining them in open corn field