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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ÖSSUR HOLDINGS, INC. and

GENERATION II, USA, INC.,

Plaintiffs,

v.

BELLACURE, INC., et al.,

Defendants.

CASE NO. C05-1552JLR

ORDER

I. INTRODUCTION

This matter comes before the court on Plaintiffs’ motion for a preliminary

injunction (Dkt. # 38). Plaintiffs seek to enjoin the Defendants from selling their knee

brace product, soliciting distributors for the device, and posting information about the

product on a website and in marketing materials. Plaintiffs also seek a court order

directing Defendants to erase any electronic documents originating from Plaintiffs. 

Having read the papers filed in connection with this motion, and having heard oral

argument, the court DENIES Plaintiffs’ motion.

II. FINDINGS OF FACT

1. Plaintiff Össur Holdings, Inc. is a Delaware corporation owned by Össur hf, an

Icelandic publicly traded corporation. 

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1

 For ease of reference, the court refers to Össur Gen II throughout this order, although

the court recognizes that some of the events cited herein predate the formation of the Össur Gen

II subsidiary. 

ORDER – 2

2. Plaintiff Generation II, USA, Inc. is a Washington corporation, which became a

wholly owned subsidiary of Össur Holdings, Inc. in September 2003.

3. Össur Holdings, Inc. and Generation II, USA, Inc. currently do business in the

United States under the name of Össur Gen II. 

4. Össur Gen II1

 designs and manufactures prosthetic and orthotic devices, including

devices for the treatment of osteoarthritic knee pain. 

5. Defendants Shane Sterling and Maurice Cannon left Össur Gen II and are

presently engaged in designing and selling a rival knee brace product for

Defendant Bellacure, Inc. 

6. Mr. Sterling worked for Össur Gen II from April 2000 to April 2004 as a product

development engineer, a managing engineer, and ultimately as the director of

research and development. Prior to working at Össur Gen II, Mr. Sterling gained

expertise in the field of biomechanical engineering, including design and

development of a knee brace prototype for Seattle Orthopedic Group, Inc. 

7. Mr. Cannon began working for Össur Gen II on November 16, 1999 as a sales

associate and later, as the director for national sales. Mr. Cannon left Össur Gen II

in September 2004 after the company demoted him to the position of area

manager. Mr. Cannon came to Össur Gen II with approximately five years prior

experience as a salesperson in the ligament and osteoarthritis brace industry.

Andrus Decl., Exh. F. at 8. 

8. As a condition of their employment with Össur Gen II, both Mr. Sterling and Mr.

Cannon signed a Business Protection Agreement (“BPA”). 

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ORDER – 3

9. Mr. Sterling’s BPA contains a non-competition provision preventing him from

engaging in a competing enterprise for twelve months after the end of his

employment. Andrus Decl., Exh. 43 ¶ 9. 

10. Mr. Cannon’s BPA contains a confidentiality provision which provides that Mr.

Cannon must protect against any disclosure of “confidential information” during

and after his employment with Össur Gen II. Andrus Decl., Exh. 206. ¶ 2. 

Confidential information “does not include information that is generally known to

the public or is disclosed to Employee by Company without restriction.” Id. Mr.

Cannon’s BPA also contains a non-solicitation provision which provides, in

relevant part, that the employee:

shall not . . . at any time after his or her employment is terminated

. . . :

(b) Solicit Company’s employees or contractors to work

with other companies; or accept or solicit any work . . . or other

business from any Company Business Contact if doing so could

reasonably be expected to negatively impact Company’s business

relationship with the Business Contact; . . . .

Id.

11. While employed at Össur Gen II, Mr. Sterling supervised an effort to design an

updated knee brace, generally referred to as the “Aponos Project.” As part of the

Aponos Project, Mr. Sterling and his team worked with One and Co., an industrial

design firm, to develop a “new look” for the knee brace. 

12. In February 2003, One and Co. provided Össur Gen II with a report entitled

“Design Language Guidelines” for the Aponos Project (the “Guidelines”). The

Guidelines summarized the following “functional elements” as characteristics of

the new knee brace: an internal “spider strap,” a cable dial system (for high end

models only), a quick release system, and an inverted hinge mechanism. Andrus

Decl., Exh. 22. The Guidelines also introduced concepts related to “form,” which

included: surface simplicity, biomorphic gesture, symmetrical geometry, reduced

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ORDER – 4

perceived volume, concealed functionality, vertical line emphasis, clean edge

finishing, and a flush surface look. Id. 

13. Össur Gen II did not retain One and Co. to fabricate a prototype based on the

concepts and designs contained in the Guidelines. 

14. The parties dispute when Mr. Sterling ceased working on the Aponos Project. 

Plaintiffs provide evidence that Mr. Sterling and his team continued to sketch

drawings of individual brace pieces and that Mr. Sterling made at least one

presentation about the Aponos Project over the course of the summer and fall of

2003. 

15. Regardless of when (or if) Össur Gen II shelved the Aponos Project during Mr.

Sterling’s tenure, the court finds that the Guidelines released in February 2003

constitute the primary deliverable associated with the Aponos undertaking. 

Indeed, it is the combination of features depicted in the Guidelines over which

Plaintiffs assert trade secret status. In reference to the Guidelines, Plaintiffs’

counsel stated at oral argument that although the Aponos Project was “still in the

development stage . . . the ideas are all there.” 

16. Roughly one month after leaving Össur Gen II in April 2004, Mr. Sterling

purchased software, tools and equipment to begin work on his own knee brace

design. During this time, Mr. Sterling met with a business and finance consultant. 

17. In September 2004, Mr. Sterling met with One and Co. to discuss development of

a tangible prototype. Mr. Sterling states that he specifically instructed One and

Co. to prepare designs for his product independent of anything they had worked on

in the past – whether for Össur Gen II or any other company. Sterling Decl. ¶ 25. 

18. In January 2005, Mr. Sterling incorporated Bellacure, Inc. At that time, Mr.

Sterling hired Mr. Cannon as Vice President of Sales and Marketing. 

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ORDER – 5

19. Over the next several months, Mr. Sterling engaged various vendors to produce the

garment and circuit boards for the product. 

20. In August 2005, Bellacure launched its website, complete with a description of its

new knee brace product. As of October 31, 2005, Bellacure had sold 132 knee

braces in the retail market. 

21. Mr. Sterling spent approximately 18 months developing the Bellacure knee brace. 

As indicated by Össur Gen II’s own industrial engineer, Palmi Einarsson, the

typical time frame for development of a prosthetic product – from scratch to

market – ranges from 8 to 14 months. Andrus Decl., Exh. G at 18. 

22. After Sterling’s departure, Össur Gen II designers continued to work on an updated

knee brace. The company intends to launch its “Generation III” knee brace in mid2006. 

III. CONCLUSIONS OF LAW

1. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal

question) and 28 U.S.C. § 1367 (supplemental jurisdiction over state law claims). 

2. Plaintiffs seek an injunction based on their state law causes of action for

misappropriation of trade secrets and various breach of contract claims. 

3. The function of a preliminary injunction is to preserve the status quo and to

prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v.

Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

4. In order to obtain a preliminary injunction, Plaintiffs must meet either the Ninth

Circuit’s “traditional” or “alternative” test. The traditional test requires the court

to find that: 

(1) the moving party will suffer irreparable injury if the relief is

denied; (2) the moving party will probably prevail on the merits;

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ORDER – 6

(3) the balance of potential harm favors the moving party; and (4)

the public interest favors granting relief.

Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987).

5. The alternative test requires the court to find that: “(1) a combination of probable

success and the possibility of irreparable injury or (2) that serious questions are

raised and the balance of hardships tips sharply in its favor.” Id. (internal citations

omitted).

6. The two prongs of the alternative test are not separate inquiries, but rather

“extremes of a single continuum.” Clear Channel Outdoor, Inc. v. City of Los

Angeles, 340 F.3d 810, 813 (9th Cir. 2003). 

7. The court’s ultimate decision on a motion for a preliminary injunction is within its 

discretion. Cassim, 824 F.2d at 796.

8. In their response, Defendants move to strike exhibits submitted by Össur Gen II on

the basis that Plaintiffs have failed to sufficiently authenticate their submissions. 

The court denies Defendants’ request as the court has discretion to consider even

inadmissable evidence for purposes of a preliminary injunction motion. Flynt

Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). 

9. Defendants also request an evidentiary hearing, which the court denies. Stanley v.

University of So. California, 13 F.3d 1313, 1326 (9th Cir. 1994) (court may refuse

oral testimony where parties given full opportunity to submit written testimony and

to argue the matter). Given the discovery conducted by the parties and the

extensive submissions made to the court, the court finds that the parties have had a

sufficient opportunity to argue the matter.

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ORDER – 7

Conclusions Regarding Plaintiffs’ Likely Success on Their Trade Secrets Claim

10. Washington’s version of the Uniform Trade Secrets Act (“UTSA”) authorizes

injunctions for “[a]ctual or threatened misappropriation” of trade secrets. RCW

§ 19.108.020.

11. Under the UTSA, 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.

RCW § 19.108.010(4).

12. A new combination of features, even if it includes elements already in the public

domain, may constitute a protectable trade secret. The Boeing Company v.

Sierracin Corp., 738 P.2d 665, 675 (Wash. 1987). Such a combination, for

example, may be embodied in plans or drawings. Id. (reasoning that although

cockpit windows were already on the market, the plans and drawings developed by

plaintiff to meet FAA requirements were protected trade secrets). Elevation to

trade secret status also requires novelty. Buffets, Inc. v. Klinke, 73 F.3d 965, 967-

68 (9th Cir. 1996) (applying the Washington UTSA). 

13. Here, the court concludes that the “combination of features and functionality” as

incorporated into the Aponos designs and concepts do not likely constitute trade

secrets. 

14. Plaintiffs fail to demonstrate how or which “features” and “functionality” combine

to form a novel product. Tellingly, in their last submission to the court, Plaintiffs

reiterate that “Defendants have not provided the Court with any evidence to

establish that the combination of features incorporated into the Aponos design is

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ORDER – 8

found in any other publicly available product.” Pls.’ Prop. FF/CL at 25; see also

Pls.’ Reply at 6 (“defendants have not pointed to any product on the market that

comprises these elements in combination.”) Plaintiffs, not Defendants, bear the

burden of demonstrating the novelty of the Aponos combination of features. 

Boeing, 738 P.2d at 674. 

15. Plaintiffs rely heavily on what is provided by Mr. Einarsson, whose testimony is

largely focused on a comparison between the Bellacure product and the sketches

developed over the course of the Aponos Project. Mr. Einarsson’s comparison

between the Aponos concepts and the Bellacure brace, however, does not

demonstrate to the court how the former is entitled to trade secret protection in the

first place. 

16. Beyond comparisons to the Bellacure product made by Mr. Einarsson and other

Össur Gen II employees, the only evidence that bears on whether the Aponos

Project embodies a novel combination of features comes from the testimony of

One and Co. designer, Claude Zellweger. Mr. Zellweger states that, at the time he

worked on the Aponos designs, he believed that Össur Gen II was making a

departure from the “robot” look of other braces on the market. Andrus Decl., Exh.

D at 127-28. Importantly, he goes on to state that “[e]veryone’s trying to get

lighter” and that “everyone has adjustable systems,” and that the Aponos Project

was “never taken to the stage where you could have . . . said that it really does

[adjustment] successfully.” Andrus Decl., Exh. D at 127-28. Even if the court

assumes that Mr. Zellweger has a sufficient basis from which to comment on

industry-wide features and trends, his testimony does not persuade the court that

the Aponos designs and concepts presented a novel combination of features or

functionality. 

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2

 The parties alternate between citing April 15th and April 16th as Mr. Sterling’s last day

of employment with Össur Gen II.

3

 For the first time, Plaintiffs argue in their proposed findings of fact/conclusions of law

(Dkt. # 79) that Mr. Sterling is in violation of the confidentiality and non-solicitation provisions of

his BPA. The court does not consider either argument as a basis for injunctive relief as Plaintiffs

did not directly argue either grounds in their preliminary injunction motion. In any case, the

court’s conclusion that Plaintiffs have not demonstrated a likely success on their trade secrets

claim is dispositive of Plaintiffs’ claim that the alleged misappropriation also violated the

confidentiality provision of Mr. Sterling’s BPA.

ORDER – 9

17. In the absence of evidence to the contrary, the court is persuaded by Defendants’

argument that vague Aponos concepts such as having a “sleek look” and making

the product “easy to don” and “comfortable” would be the aspiration of any

conscientious industrial engineer. That Mr. Sterling also had such goals for the

Bellacure brace does not transform the Aponos designs and concepts into trade

secrets. 

18. The court concludes that Plaintiffs fail to demonstrate that their designs and

concepts likely constitute legally protectable trade secrets. Thus, the court need

not reach the issue of misappropriation. Boeing, 738 P.2d at 674 (plaintiff must

first establish a legally protectable interest). 

Conclusions Regarding Plaintiffs’ Likely Success on the Merits of Their Breach of

Contract Claim Against Mr. Sterling 

19. The non-competition provision of Mr. Sterling’s BPA expired no later than April

16, 2004.2

20. The court concludes that the expired non-competition provision of the Sterling

BPA cannot provide a basis for injunctive relief.3

 Alexander & Alexander, Inc. v.

Wohlman, 578 P.2d 530, 540 (Wash. Ct. App. 1978) (holding that injunctive relief

after non-competition covenants had expired would be “inappropriate and

manifestly unfair” to former employees). The court declines to enjoin a breach of

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ORDER – 10

a contract provision that is no longer in force. The court, therefore, does not reach

the merits of Plaintiffs’ claim that from April 2004 to April 2005, Mr. Sterling was

in violation of the non-competition clause of his BPA. Such an inquiry is

appropriate only as it relates to a claim for damages. Id. 

21. The court further concludes that, in this instance, a unilateral modification to the

Sterling BPA in order to extend the duration of the non-competition provision for

an additional 12 months is contrary to Washington law. See, e.g., Labriola v.

Pollard Group, Inc., 100 P.3d 791, 793-96 (Wash. 2004) (courts enforce noncompete provisions that are reasonable and supported by the parties’

consideration). 

Conclusions Regarding Plaintiffs’ Likely Success on the Merits of Their Breach of

Contract Claim Against Mr. Cannon

22. The non-solicitation and confidentiality provisions of Mr. Cannon’s BPA contain

no expiration date and thus, remain enforceable. 

23. Plaintiffs assert that Mr. Connell is in breach of the non-solicitation and

confidentiality provisions of his BPA because he: (a) assisted Mr. Sterling in

marketing and promoting the Bellacure brace (which allegedly incorporates Össur

Gen II trade secrets); (b) provided Mr. Sterling and Bellacure with the email

addresses of distributors used by Össur Gen II; and (c) solicited a distributor used

by Össur Gen II to sell the Bellacure brace. Pls.’ Mot. at 33. 

24. The court’s conclusion that Plaintiffs have not demonstrated a likely success on

their trade secrets claim is dispositive of Plaintiffs’ claim that the alleged

misappropriation (via marketing and promotion of the Bellacure brace) violated the

confidentiality provision of Mr. Cannon’s BPA.

25. As to Mr. Cannon’s provision of distributor names and emails to Bellacure and

Mr. Sterling, the court concludes that Plaintiffs have not demonstrated a likely

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ORDER – 11

success on the merits of their claim that Mr. Cannon is in breach of the

confidentiality provision of his BPA. Plaintiffs fail to provide evidence that the

names and emails of distributors are not generally known to the public. Indeed,

Össur, Inc.’s General Manager, Huld Magnusdottir, notes that customers may (and

often do) call the company to ask for distributors in their local area and that such

information is readily provided. Andrus Decl., Exh. E. at 68-69. Attendance at a

trade show would likewise provide access to such information. 

26. The definition of confidential information in Mr. Cannon’s BPA expressly

excludes that which is disclosed to the employee by Össur Gen II “without

restriction.” Össur Gen II appears to have released the names and emails to Mr.

Cannon “without restriction” when they allowed him to keep the company laptop

after his departure without any effort to clean the hard drive or otherwise protect

what they now claim is confidential. 

27. Plaintiffs argue that Mr. Cannon had other valuable information “in his head”

including general knowledge of distributors’ sales revenue numbers, which Mr.

Cannon does not dispute. Defendants indicate that Mr. Cannon has prior

experience in the industry from which he developed personal relationships with

various distributors. Further, Mr. Cannon testifies that the relative size and

success of distributors is well-known in the industry. Plaintiffs cite the testimony

of Mr. Sterling who states that he would not want Össur Gen II to gain access to

Bellacure’s distributor list because it would not be “good business strategy.” 

Andrus Decl., Exh. A at 28. Mr. Sterling’s statement and similar statements made

by Mr. Cannon do not render the particular names and email addresses

confidential. Without more, the court cannot conclude that Plaintiffs would likely

succeed on their claim that Mr. Cannon breached the confidentiality provision of

his BPA. 

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4

 Mr. Cannon testifies that several former distributors, unhappy with Össur Gen II, have

contacted Bellacure for business. Indeed, roughly six or seven of Bellacure’s list of ten potential

and actual distributors had contracts with Össur Gen II at one time. Andrus Decl., Exh. F. at 177

(citing Exh. 238). Plaintiffs concede, however, that if a distributor had terminated its agreement

with Össur Gen II before contacting Mr. Cannon, then under his BPA, Mr. Cannon could

 lawfully solicit their business. Pfs.’ Reply at 10. 

ORDER – 12

28. As to the non-solicitation provision of Mr. Cannon’s BPA, the court concludes that

Plaintiffs have not shown a likely success on the merits of their claim that Mr.

Cannon is in breach. Shortly after leaving Össur Gen II, Mr. Cannon emailed Mr.

Sterling with an attack plan of “recruiting and signing Össur distributors.” Andrus

Decl., Exh. 191. Still, the only evidence bearing on whether Mr. Cannon is 

soliciting a current4

 Össur Gen II distributor comes from his testimony in which he

refers to a verbal agreement with distributor Pro Motion Medical Tech, Inc. (“Pro

Motion”). Andrus Decl., Exh. F. at 178-79. Plaintiffs contend that Pro Motion is

a current distributor for Össur Gen II. When asked who initiated the contact, Mr.

Cannon could not recall whether Pro Motion contacted Bellacure, or vice versa. 

29. Based on Mr. Cannon’s testimony alone, Plaintiffs argue that he is “encouraging

[Pro Motion] to terminate its relationship” with Össur Gen II. Mr. Cannon’s

testimony does not support this argument. In fact, Mr. Cannon states that if Pro

Motion was a current Össur Gen II distributor, then he would not sign a

distribution agreement with them. Moreover, Ms. Magnusdottir indicates that

Össur Gen II’s distributors all sign non-compete agreements which would bar them

from simultaneously representing Bellacure. Andrus Decl., Exh. E. at 113. Based

on the evidence before it, the court is not persuaded that Plaintiffs have

demonstrated a likely success on the merits of their claim that Mr. Cannon has

breached his BPA by soliciting current Össur Gen II distributors. 

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ORDER – 13

30. Where a plaintiff fails to make a strong showing on the merits, the degree of

irreparable harm that it must show is increased. Oakland Tribune, Inc. v. Chronicle

Pub. Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985). Against this backdrop, the

court now turns to the issue of irreparable harm.

Conclusions Regarding Irreparable Harm

31. Washington’s Uniform Trade Secrets Act (“UTSA”) does not articulate the

standard by which a court grants injunctive relief. RCW § 19.108.020. The

Washington statute on injunctions, however, dictates that Washington courts have

discretion to grant injunctive relief under the same general principles of equity

provided at common law; namely, where one’s act causes “great injury” to another

prior to an adjudication on the merits. RCW § 7.40.020.

32. Irreparable harm exists where monetary damages provide inadequate relief, such as

cases involving environmental damage or human suffering. See, e.g., Save Our

Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120, 1124 (9th Cir. 2005) (alleged

damage to the Sonoran desert); Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004)

(alleged delay or lack of necessary medical treatment, increased pain, and medical

complications). 

33. Conversely, “[t]he possibility that adequate compensatory or other corrective relief

will be available at a later date, in the ordinary course of litigation, weighs heavily

against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974);

Arcamuzi v. Cont’l Air Lines, Inc., 819 F.2d 935, 938 (9th Cir. 1987) (“temporary

economic loss alone generally is not a basis for injunctive relief”). Thus, a district

court abuses its discretion when it issues a preliminary injunction based on a

generalized threat of lost revenue, market value, and goodwill. Los Angeles

Memorial Coliseum Com’n v. Nat’l Football League, 634 F.2d 1197, 1202-03 (9th

Cir. 1980). 

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ORDER – 14

34. Losses that are merely speculative are insufficient to support a finding of

irreparable harm; the injury, rather, must be actual or imminent. Goldie’s

Bookstore v. Sup Ct., 739 F.2d 466, 472 (9th Cir. 1984) (trial court’s findings that

plaintiff would lose goodwill and “untold” customers held speculative on appeal).

35. Courts in the Ninth Circuit erect a presumption of irreparable harm where a

plaintiff proves likely success on the merits of a copyright or trademark

infringement claim; however, the court is aware of no binding authority that

applies such a presumption in the context of a trade secrets claim. Compare

TeleTech Customer Care Mgmt., Inc. v. Tele Tech Co., 977 F. Supp. 1407, 1412

(C.D. Cal. 1997) (presumption applied in trademark infringement claim) and

Pacific Aerospace & Electronics, Inc. v. Taylor, 295 F. Supp. 2d 1188, 1198 (E.D.

Wash. 2003) (presumption not applicable in trade secrets claim). 

36. Although the Washington Supreme Court has upheld an injunction in a trade

secrets case where the trial court failed to expressly cite findings related to

irreparable harm, the court went on to discuss the existence of such harm –

seeming to indicate that the degree of harm retains a role in the analysis. Boeing

Co. v. Sierracin Corp, 738 P.2d 665, 681 (Wash. 1987) (“The potential harm to

Boeing as trade secrets holder extends beyond a mere calculation of monetary

damages.”). 

37. Here, beyond arguing for a blanket presumption in the context of a trade secrets

claim, Plaintiffs provide little evidence in the way of demonstrating irreparable

harm. Plaintiffs claim that they will suffer a market disadvantage based on

Bellacure’s “jump start” in releasing a rival product. The court concludes that

such injury is merely a generalized threat of lost revenue, which can be adequately

redressed by monetary relief. Nat’l Football League, 634 F.2d at 1202-03. Harm

associated with another’s profiteering may be remedied, for example, by

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disgorgement of profits. See Andurs Decl., Exh. G at 145, Exh. E at 122

(depositions of Mr. Einarsson and Ms. Magnusdottir, respectively, in which both

indicate that a licensing fee would be an appropriate way to quantify the damage

associated with Defendants’ launch of the Bellacure brace). 

38. Plaintiffs contend that their harm extends beyond Bellacure’s position as a market

participant and that they suffer irreparable injury because other, more established

competitors now have access to their trade secrets via the Bellacure website. 

Plaintiffs assert that the “bell has been rung” and that there is no way to recapture

their secret information. Plaintiffs argue that manufacturers can go to the website

and “copy what they see” without Össur Gen II’s permission. Plaintiffs provide no

evidence to this end, nor do they provide the court with the particular website

content at issue. Still, the court is mindful that harm associated with a

competitor’s access to trade secrets may be difficult to quantify and thus, a basis

for finding irreparable injury. Pacific Aerospace, 295 F. Supp. 2d at 1198 (citing

Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 92-93 (3rd Cir. 1992) (“[A]n

intention to make imminent or continued use of a trade secret or disclose it to a

competitor will almost always certainly show irreparable harm.”)). Even if the

court were to presume irreparable harm, however, Plaintiffs would have had to

show a likelihood of success on the merits of their trade secrets claim in order to

“shut down” Defendants’ website. 

39. Plaintiffs further contend that they face irreparable harm because Mr. Cannon has

already recruited at least six current or former Össur Gen II distributors. As

discussed previously, Plaintiffs have not demonstrated that Mr. Cannon is

soliciting current distributors and furthermore, such distributors would be

prohibited by contract with Össur Gen II from signing with Bellacure. 

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Accordingly, the court concludes that Plaintiffs do not face imminent, irreparable

injury as a result of Mr. Cannon’s contact with industry distributors. 

40. Having found that Plaintiffs have failed to demonstrate irreparable harm, the court

briefly considers the balance of hardships and finds that it tips in Defendants’

favor. In considering the harm that a preliminary injunction might cause in

relation to a plaintiff’s threatened injury, the court considers the relative size and

strength of each party. Sardi’s Restaurant Corp. v. Sardie, 755 F.2d 719, 725 (9th

Cir. 1985) (established restaurant less likely to be adversely impacted by identity

problem than new restaurant). Bellacure is a start-up company with a minuscule

share of the market, while Össur Gen II is a market leader earning $31 million a

year on just four of its products. The court is persuaded that an injunction

prohibiting Bellacure from selling and advertising its only product would be

devastating to the company. 

III. CONCLUSION

For the reasons stated above, the court DENIES Plaintiffs’ motion for a

preliminary injunction (Dkt. # 38). 

Dated this 14th day of December, 2005.

A JAMES L. ROBART

United States District Judge

Case 2:05-cv-01552-JLR Document 83 Filed 12/14/05 Page 16 of 16