                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                March 17, 2005

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 04-20340
                    Consolidated With 04-20437




                       HARRY T. KEANE, JR.

                                             Plaintiff - Appellant


                              VERSUS


FOX TELEVISION STATIONS, INC.; KRIV FOX 26 (HOUSTON, TX); SIMON
COWELL; SIMON FULLER, Individually, doing business as 19TV;
FREMANTLEMEDIA OF NORTH AMERICA, INC.; FREMANTLEMEDIA, LTD.; 19TV
LTD.; NIGEL LYTHGOE


                                             Defendants - Appellees



           Appeals from the United States District Court
                 For the Southern District of Texas
                            4:03-CV-1642


Before DAVIS, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

      Appellant Keane challenges the district court’s Rule 12(b)(6)

dismissal of his action alleging defendants’ misappropriation of

Keane’s concept for a television show, which he planned to call



  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
“American Idol.”1     We affirm the judgment of the district court

essentially for the reasons stated by the district court in its

April 13, 2004 Memorandum and Order.

       In his complaint, Keane alleged several causes of action, all

of which the district court dismissed on 12(b)(6) grounds. On

appeal, Keane argues that he stated claims upon which relief can be

granted for breach of an implied-in-fact contract, breach of a

contract implied in law, quantum meruit, unfair competition (both

for misappropriation of a product and misappropriation of a trade

secret), and trademark infringement. As Keane has failed to allege

any set of facts to support a claim which would entitle him to

relief, the district court did not err in dismissing this claim

under rule 12(b)(6). See Conley v. Gibson, 355 U.S. 41 (1957),

Lefall v. Dallas Indep. School Dist., 29 F.3d 521, 524 (5th Cir.

1994).

       Because we affirm the district court’s dismissal of Keane’s

claims on 12(b)(6) grounds for the reasons stated in the district

court’s opinion, it is unnecessary for us to engage in a detailed

analysis of the various legal issues. Fundamentally, we agree with

the district court that Keane’s trademark action is “derailed by

two fundamental, fallacious premises”, Keane, 297 F.Supp. 2d at

933:     namely, that his rights in an unregistered concept or idea

  1
   According to Keane, he also considered calling his show
“Ultimate Starsearch” and “American Superstars”. Keane v. Fox
Television Stations, Inc., 297 F. Supp. 2d 921, 926 (S.D. Tex.
2004).

                                  2
are protectable and that being the first in time to use the phrase

“American Idol” entitles him to trademark protection. Trademarks

only protect fully developed products, not the ideas for the

products. Also, unregistered trademark rights must be appropriated

through use, that is, through some commercial activity and Keane

asserted no such commercial activity sufficient to appropriate such

rights.

     Beyond his trademark arguments, Keane heavily emphasized his

claims for breach of implied-in-fact contract and misappropriation

of trade secrets. In Whitfield v. Lear, 751 F.2d 90 (2nd Cir.

1984), the Second Circuit asserted that the idea purveyor cannot

recover unless he has obtained a promise to pay or the conduct of

the offeree reflects an intent to pay for the proffered idea. See

also Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d

485, 489 (9th Cir. 1984) (An implied-in-fact contract exists where

“the circumstances and conduct manifesting the terms and existence

of a contract precede or attend disclosure of the idea”. See also

Kleck v. Bausch & Lomb, Inc., 145 F.Supp. 2d 819, 825 (W.D. Tx.

2000). We agree with the district court’s reading of plaintiff’s

pleadings that he did nothing to indicate that disclosure of his

idea was contingent on payment.   Consequently, the district court

correctly concluded that the defendants’ acceptance of plaintiff’s

idea cannot be taken as an implied acceptance.

     Similarly, we agree with the district court’s dismissal of

plaintiff’s misappropriation of trade secret claims. Because Keane

                                  3
sent out unsolicited letters, which detailed the specifics of his

idea, to several different production companies and advertised his

idea on the internet, the district court correctly found that he

cannot demonstrate that he had a trade secret that was unknown

outside of his business or that he took measures to guard the

secrecy of the information.

     Because     we   conclude   that    the   district   court   correctly

determined that Keane failed to survive the defendants’ 12(b)(6)

motion, we need not reach the preemption issue.

     We also agree with the district court’s thorough consideration

of defendants’ claim for attorneys’ fees and the district court’s

award of attorneys’ fees against the plaintiff and in favor of the

defendants. The district court’s conclusion that the plaintiff

pursued his copyright claim when he knew none existed is supported

by the record.        The district court’s finding of bad faith by

plaintiff’s attorney also supported imposition of fees under the

Lanham Act.

     For these reasons we affirm the judgment of the district

court.

     AFFIRMED.




                                     4
