Opinion
Case No. 02-CV-70906, Case A
December 19, 2003
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION FINDINGS OF FACT
I. BACKGROUND
Defendant International Business Machines Corporation ("IBM") develops and sells a wide range of computer hardware, software and services, including "mainframe" computers, operating systems and middleware, which includes database software. Plaintiff Compuware's products at issue in its preliminary injunction motion are File-AID and Abend-AID. These sophisticated software tools streamline the development of software applications for IBM's mainframe computers by allowing programmers to edit, browse and manage data with ease, and to diagnose and correct program errors efficiently. IBM's operating systems and middleware generate output or "abend dumps" when errors occur. Abend-AID collects information from IBM dumps to present to users. Compuware's tools are generally recognized within the industry as being "best of breed" in terms of quality, functionality, and performance.
In 1999, IBM developed File Manager to compete with File-AID, and Fault Analyzer to compete with Abend-AID. These IBM products together with a third IBM product, Debug Tool, are referred to as Application Development Tools or "Tools." According to IBM, it entered the software tools market in response to customer complaints about the increasing costs of mainframe ownership due to pricing by Compuware and other Independent Software Vendors. IBM called its initiative to displace the Compuware products "Competitive Winback," or "CW."
IBM's Tools were developed at its Australian Programming Centre ("APC"), which is part of IBM Global Services Australia, a subsidiary of IBM. Most of the code for Version 1 of IBM's Tools was taken from pre-existing IBM programs. For example, code from IBM's DITTO, a 30-year old file manipulation tool, comprised 75% of Version 1 of File Manager. Code from IBM's LANGX comprised 60% of Version 1 of Fault Analyzer. The use of existing IBM code saved time and development costs. Version 1 provided customers with basic functionality, and was released by IBM in 2000, approximately one year after development began. Versions 2 and 3 of IBM's Tools, which were released in August 2001 and September 2002 respectively, included additional code and provided additional features and functionality. Version 4 of IBM's Tools was scheduled to become available in the Fall of 2003.
Compuware seeks preliminary injunctive relief to stop what it describes as theft of its proprietary information and trade secrets, infringement of its copyrights, and the making of false representations about the features, functionality and performance of its products by IBM. Compuware contends that an injunction is necessary to prevent further irreparable harm by IBM.
II. EVIDENCE OF TRADE SECRET MISAPPROPRIATION
A. Compuware's Confidential and Trade Secret Information
To develop and continually improve its software tools, Compuware relies on extensive information it has compiled over the years concerning its customers' preferences, needs and priorities as they relate to Compuware's products. According to Compuware, this market research is collected primarily by Compuware's sales force, including sales representatives and technical sales support personnel, who relay the information to Compuware's product managers. The product managers distill the collected information into "product requirements," which guide Compuware's planning and development process. Compuware gives as an example of an alleged trade secret the customer preference of scrolling up/down and left/right. The claimed trade secret is not the scrolling ability of the program, but the preference for such a feature.
In the course of developing and refining its application development products, Compuware has developed unique approaches to solving a variety of technical problems. Compuware maintains that its program source code, and its internal implementations and solutions, are not generally known, cannot be observed by customers and are not disclosed to third parties in marketing materials or otherwise. Therefore, its source code is also claimed to be a trade secret.
B. Compuware's Measures to Protect Confidential Information
Compuware requires its employees to execute employment contracts that prohibit unauthorized use or disclosure of Compuware's confidential information, either during or after their employment. Specifically, Compuware's employment agreement defines "confidential information and materials" as:
all information belonging to or used by Compuware or Compuware's customers relating to internal operations, procedures and policies, business strategies, pricing, billing information, financial information, customer contacts, clients, sales lists, employee lists, technology, software source code, software documentation, programs, costs, employee compensation, marketing plans, developmental plans, computer programs, computer systems, inventions, developments, and trade secrets of any kind and character.
Compuware also advises employees of their confidentiality obligations in its employee Code of Conduct.
Compuware takes measures to restrict information concerning the "externals" of its products. Compuware provides File-AID and Abend-AID products and documentation to customers under license agreements or, in the case of prospective customers, trial agreements, containing non-disclosure provisions.
In 1991, IBM and Compuware entered into a perpetual license agreement. The parties deleted the standard "Title and Proprietary Rights" language from the form-license agreement and replaced it with an addendum that (1) deleted the statements that Compuware's software contained trade secrets, while acknowledging that it contained proprietary information, (2) stated that "Compuware agrees that [IBM] shall be free to use for any purpose any ideas, concepts, or techniques which are perceivable during the ordinary course of preparing, executing or otherwise using the Program for its intended purpose, subject to valid patents and copyrights," and (3) expressly allowed IBM "to reassign any employee who may come in contact with the Program and Documentation, and to undertake any development or marketing effort in the field of the Program." In the addendum, IBM also agreed (i) that it would limit access to the program to its employees and agents whose responsibilities necessitate such access, and (ii) that it would not copy the program, except for ordinary back-up copies.
Compuware acquired XA Systems and Tomark, which respectively developed the original File-AID and Abend-AID products. According to Compuware, both companies employed similar measures to protect the confidentiality of their program source code, internal product architecture, design and customer preference information. To the contrary, however, in 1990, IBM entered into a perpetual license agreement with XA, which provided that "[a]ll ideas, concepts, know-how or techniques relating to data processing that are disclosed in the Software or other written material may be freely used and disclosed by Licensee." C. IBM's Use of Former Compuware Employees
Given its self-imposed budget and time constraints, IBM could only implement some of the features of its competition in the first version of its Tool products. Compuware accuses IBM of using ex-Compuware employees to help them prioritize the development efforts of their new Tools. Compuware presents evidence offered to show that the design of the new IBM products was based on detailed, confidential information obtained from a group of ex-Compuware employees, each of whom had either held a development role or a sales position for Compuware's File-AID or Abend-AID.
IBM conceded at the preliminary injunction hearing that it used information from the former Compuware employees to "prioritize" the external features and functions that should be included in the initial and subsequent versions of IBM's products. IBM maintains that external features are not trade secrets, especially in light of the parties' license agreement. In addition, no former Compuware employee wrote any code for File Manager or Fault Analyzer.
A copy of the initial design specification for File Manager in 1999 contains notations by ex-Compuware employee Allan Tortorice concerning which features the product should include. Tortorice's job description included working with the APC to help identify those features and functions that were critical for the successful release of the AD Tools. Jill Bertini was another ex-Compuware employee hired in September 1999 as part of IBM's sales team. Bertini admitted that on her first day on the job, IBM flew her from Pennsylvania to California to meet with other former Compuware employees and the APC developers, who had been flown in from Australia. There, Bertini provided input into the File Manager external design specification concerning the most popular features of File-AID.
Other former Compuware employees provided similar information in subsequent years. Compuware maintains that IBM was able to avoid conducting its own market research, including time-consuming interviews and customer surveys, by having the ex-Compuware employees, in particular, James Hildner, identify "show stoppers" required for future releases. For example, in 2000, Hildner contributed heavily to a prioritized list of features for the first version of File Manager. Indeed, Mr. Hildner's input caused IBM to postpone File Manager's release, so that Hildner, along with other ex-Compuware employees, Mike Larsen and Bertini, could direct the redesign of File Manager's interface.
D. Disclosure and Use of Compuware's Internal Product Information
Compuware accuses IBM of obtaining confidential technical information concerning the internal operations of Compuware products from ex-Compuware employees and using this information in designing and developing the AD Tools products. Such "internal" information should be contrasted with the products' "externals" — that is, information obtained through the ordinary use of the products and documentation for their intended purpose.
The internal technical information allegedly came from three primary sources: Jim Hildner, who has been described as the "technical backbone" of the product that later evolved into File-AID; Jim McIntosh, who was for many years an Abend-AID developer and product planner for Compuware; and John Melcher, who had been said to know Abend-AID "off the top of his head." Although Melcher is not an IBM employee, he had sought employment with IBM and provided technical information concerning the internal workings of Abend-AID when his friend McIntosh asked for it.
When the APC developers encountered design problems in invoking its software under an ISPF interface, they repeatedly consulted Hildner concerning the manner in which File-AID and its predecessor product had solved the problem. The parties dispute whether File Manager and File-Aid have similar internal architectures, and if so, whether such is dictated by the IBM operating environment. Other information provided by the ex-Compuware employees came from IBM sources. For example, Melcher directed IBM where to look in its own user manuals to solve problems that arose regarding how the Tools run on IBM's programs.
Compuware argues that the fact that File Manager's internal architecture is virtually identical to File-AID's, even though File Manager was built nearly 20 years later, is probative evidence that IBM either had access to Compuware's source code or relied extensively on the ex-Compuware employees who had intimate knowledge of Compuware's architecture. However, as IBM explains, File Manager is based on DITTO, which was a program originally developed by IBM in the 1960s. This would explain why much of the program is written in an older style. In addition, both parties' Tools run on IBM's macros, which requires many similarities in the designs.
III. EVIDENCE OF COPYRIGHT INFRINGEMENT BY IBM
Compuware owns copyrights in its File-AID and Abend-AID products, including the accompanying user documentation, and has copyright registrations for all of the works in question. IBM had access to the File-AID and Abend-AID programs and documentation through license agreements with Compuware. As a subsidiary, the APC was also licensed to use the products and documentation. IBM emphatically denies that it had access to any Compuware source code, and Compuware has not submitted evidence of such access.
Compuware has identified a number of similarities in the non-literal aspects, or sequence, structure and organization, of the program source code for its Tools and IBM's Tools. For example, Compuware's expert, Barbara Frederiksen, asserted in her declaration and deposition that both Fault Analyzer and Abend-AID use the same method to force an abend, that is to analyze what happened when a program crashes, or abends. However, in her Reply Declaration, Ms. Frederiksen concedes that Fault Analyzer does not force an abend in the same manner as Abend-AID. IBM proceeds to distinguish each of the other similarities identified by Compuware.
In defense of Compuware's copyright claim, IBM asserts unclean hands and copyright misuse defenses, based on the contention that Compuware copied, without authorization, certain "panels" from IBM's ISPF interface into File-AID, and copied, again without authorization, an unspecified number of error descriptions from IBM manuals into Abend-AID. IBM further contends that Compuware's copyright registrations are invalid because Compuware should have identified the registered versions of File-AID and Abend-AID as derivative works based upon the allegedly copied IBM material.
IBM maintains that it does not encourage or permit copying of its copyrighted materials and has enforced its copyrights in ISPF. This is in direct conflict with the position taken by Compuware, which is that it was encouraged to copy the ISPF and tutorial panels. IBM points out that its ISPF panels contain IBM copyright notices, while the panels copied by Compuware do not contain IBM copyright notices. Compuware also did not inform the Copyright Office that its Tools incorporporated literal copying of IBM materials.
Compuware responds that IBM encouraged third party developers to adopt ISPF and benefitted by having ISPF become an industry standard user interface. Compuware acknowledges "copying", but explains that the material at issue is a tiny percentage of the Compuware programs.
IV. FACTS RELATING TO COMPUWARE'S FALSE ADVERTISING CLAIM
Compuware's Lanham Act claim is based on IBM's advertising of its Tools as a "total replacement" for Compuware Tools. IBM did make comparisons to Compuware Tools, stating that the IBM Tools "deliver superior functionality while maintaining a look-and-feel similar to the Compuware products." Compuware claims a violation of the Lanham Act because IBM knew that its Tools were not functionally equivalent, let alone superior, to Compuware's Tools. Compuware submits evidence of e-mails and testimony from IBM employees purporting to show the IBM products were not as good as the Compuware products.
IBM responds that its customers' purchasing decisions were not driven by sales presentations. Rather, customers of IBM's Tools evaluated the products during trial periods or with money-back guarantees.
Compuware identifies thirty-six customers to whom IBM allegedly made misrepresentations. According to IBM, eighteen of those customers never bought IBM's Tools, and the remaining eighteen customers bought IBM's Tools only after a trial period, or with a money-back guarantee. Compuware submits an e-mail message from a dissatisfied employee at Graco, Inc., which purchased an IBM Tool to replace their Compuware Tools:
To tell the truth, if we would have had any idea that these IBM tools were not at all ready for "prime-time", I am certain we would not have terminated those Compuware maintenance agreements.
IBM explains that Graco approached them when their contract with Compuware was about to run out. Graco informed IBM of their dissatisfaction with the cost of using Compuware, and though they were happy with the performance of Compuware's Tools, they were looking for an alternative. Graco was allegedly told that the IBM Tools did not contain all of the features of the Compuware Tools, were not right for everybody, and therefore came with a two month money-back guarantee.
V. HARM SUFFERED BY COMPUWARE
Compuware alleges that it will sustain additional substantial and irreparable harm in the form of damage to its reputation and goodwill if IBM is not enjoined. Customers who purchase mainframe tools must make very significant investments of time and resources to install and maintain the tools and to train their employees in the operation of the tools. Once such investments are made, customers are reluctant to change tools. Compuware complains that it will be able to prove damages through lost revenues, however any estimate of damages will not capture the injury due to its loss of reputation and customer relationships. This encompasses lost sales of other products and services aside from mainframe software tools.
CONCLUSIONS OF LAW
The decision of whether or not to issue a preliminary injunction lies within the discretion of the district court. CSX Transp., Inc. v. Tennessee State Bd. of Equalization, 964 F.2d 548, 552 (6th Cir. 1992). In determining whether to grant or deny an injunction, the district court is required to consider four factors:
1. whether the movant is likely to prevail on the merits;
2. whether the movant would suffer an irreparable injury if the court does not grant a preliminary injunction;
3. whether a preliminary injunction would cause substantial harm to others; and
4. whether a preliminary injunction would be in the public interest.G V Lounge v. Michigan Liquor Control Comm'n, 23 F.3d 1071, 1076 (6th Cir. 1994) (citing International Longshoreman's Ass'n v. Norfolk S. Corp., 927 F.2d 900, 903 (6th Cir. 1991), cert. denied, 502 U.S. 813 (1991).
I. TRADE SECRETS CLAIM
To prove misappropriation under the Michigan Uniform Trade Secret Act, ("MUTSA") Compuware must show that (1) it has protectable trade secrets, and (2) that IBM has improperly acquired, disclosed or used those trade secrets. See MCLA § 445.1902. Actual or threatened misappropriation may be enjoined. Id. § 445.1903(1).
Under MUTSA, in order to qualify as a trade secret, information must, separately: (1) "derive independent economic value . . . from not being generally known" and (2) be "the subject of efforts that are reasonable under the circumstances to maintain its secrecy". M.C.L.A. § 445.1902. Information may be "generally known" if it has been disclosed to, is known to, or is ascertainable by persons in the relevant industry or field. SeeRainbow Nails Enters., Inc., v. Maybelline, Inc., 93 F. Supp.2d 808, 827 (E.D. Mich. 2000).
A party alleging trade secret misappropriation must particularize and identify the purportedly misappropriated trade secrets with specificity. Utilase, Inc. v. Williamson, 188 F.3d 510, at **6 (6th Cir. 1999) (unpublished opinion); see also,Wilson v. Cont'l Dev. Co., 112 F. Supp.2d 648, 662 (W.D. Mich. 1999) ("[a] plaintiff in a trade secrets case bears the burden of pleading and proving the specific nature of the trade secret."). In its motion for preliminary injunction, Compuware described its trade secrets as "the unique combination of functions and capabilities that are found only in its File-AID and Abend-AID software tools." This description is too vague and over inclusive, and it does not account for which aspects of the Tools were known to the trade, and therefore not trade secrets. By the time it filed its Proposed Findings of Facts and Conclusions of Law, Compuware described its trade secrets as "customer preferences," product documentation, and source code for its AD Tools.
The Michigan Supreme Court has discussed whether information learned by an employee is entitled to trade secret protection. In making this determination, the linchpin is confidentiality:
While an employee is entitled to the unrestricted use of general information acquired during the course of his employment or information generally known in the trade or readily ascertainable, confidential information, including information regarding customers, constitutes property of the employer and may be protected by contract. Even in the absence of a contract, an employee has a duty not to use or disclose confidential information acquired in the course of his employment. Such information is often treated as a "trade secret."Follmer, Rudzewicz Co., P.C. v. Kosco, 420 Mich. 394, 362 N.W.2d 676, 680 (Mich. 1984). Confidential information concerning customer preferences and pricing can be protectable as a trade secret. Webcraft Tech., Inc. v. McCaw, 674 F. Supp. 1039 (S.D.N.Y. 1987). In Webcraft, the court found that customer names compiled through substantial research at the expense of a former employer, and which were kept confidential, were trade secrets.
The aggregation and distillation of the needs and desires of numerous customers is protectable as a "compilation" under the Uniform Trade Secrets Act. MCLA § 445.1902(d); SI Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1259 (3rd Cir. 1985) ("Where market research explores the needs of numerous, diverse buyers, the resulting profile is information that can only be obtained by others who undertake the same study.") Webcraft Techs., Inc. v. McCaw, 675 F. Supp. 1039, 1045 (S.D.N.Y. 1987). Compuware has not alleged that any of its former employees provided IBM with anything resembling a compilation of market research. Rather, Compuware complains that its former employees provided IBM with information which allowed IBM to prioritize the features it put into its Tools.
For example, Mr. Hildner created his list of "showstoppers" based on his general skill, knowledge and abilities as an applications programmer and his general know-how as to what users would want in a product competitive to File-AID. At trial, a reasonable fact finder can find the list of issues raised by Mr. Hildner, such as the ability to scroll in multiple modes and the capability to sort records, is the type of "ability to solve novel problems" and "experience necessary to avoid past mistakes and failures" that courts refuse to protect as trade secrets. SI Handling, 753 F.2d at 1262. In addition, Mr. Hildner's list of features is the kind of "external" information Compuware and XA Systems agreed IBM could use for any purpose.
Former Compuware sales personnel who had no involvement in the development of Compuware's Tools, appear to have used nothing more than their general skill and knowledge when they discussed customer preferences, priorities and the competitive environment. Their comments about Compuware's Tools were about the external functionality and features of Compuware's products, and were not trade secrets under the perpetual license between Compuware and IBM.
As for its source code, Compuware has for whatever reason failed to identify any specific lines of source code that have been taken by IBM.
Compuware has failed to establish a clear likelihood of success on the merits of its misappropriation of trade secrets claim. The proofs at the preliminary injunction stage were limited, and the Court is unable to make conclusive findings of fact. Much of the proofs are conflicting, so it is impossible to conclude that either position is clearly established factually. An important part of the equation for determining a parties' likelihood of success on the merits is to assess the strength of the proofs. Plaintiff is unable to demonstrate a strong likelihood of success on the merits of this claim.
II. TORTIOUS INTERFERENCE WITH CONFIDENTIALITY AGREEMENTS
The elements of a tortious interference claim are: (1) the existence of a contract; (2) the defendant's knowledge of this contract; (3) an intentional and improper interference by the defendant causing a breach; and (4) damage to the plaintiff. Liberty Heating Cooling, Inc. v. Builders Square, Inc., 788 F. Supp. 1438, 1447 (E.D. Mich. 1992).
Compuware's claim for tortious interference alleges that Compuware's former employees disclosed confidential information to IBM even though they had valid contracts with Compuware which specifically prohibited them from disclosing trade secrets or confidential information to a third party. Compuware alleges that IBM was aware of these contracts and induced their breach by the former Compuware employees.
Michigan has adopted the Uniform Trade Secrets Act ("UTSA"), which provides a statutory action and remedies for misappropriation of trade secrets. Section 8 of the Michigan statute preempts conflicting state tort law providing civil remedies for misappropriation of a trade secret. M.C.L.A. § 445.1908(a). In determining whether a cause of action is displaced, courts generally examine whether the claim is based solely on the misappropriation of a trade secret. Bliss Clearing Niagara, Inc. v. Midwest Brake Bond Co., 270 F. Supp.2d 943, 946 (W.D. Mich. 2003). The purpose of the UTSA was to "codify all the various common law remedies for theft of ideas" and that "plaintiffs who believe their ideas were pilfered may resort only to the UTSA." Id. at 948 (citation omitted). The Michigan Uniform Trade Secrets Act preempts Compuware's claim for tortious interference claim in this case where the alleged tortious interference relates exclusively to trade secret misappropriation.
III. COPYRIGHT CLAIM
The doctrine of unclean hands bars the granting of equitable relief "where the party applying for such relief is guilty of conduct involving fraud, deceit, unconscionability, or bad faith related to the matter at issue to the detriment of the other party." Ford Motor Co. v. Lloyd Design Corp., 184 F. Supp.2d 665, 684 (E.D. Mich. 2002). Failure to indicate that a copyrighted work contains material that is not original, not authored by the party who obtained the registration or is otherwise derivative of other works is grounds for barring enforcement of that copyright. See, e.g., GB Mktg. USA, Inc. v. Gerolsteiner Brunnen GmbH Co., 782 F. Supp. 763, 775-76 (W.D.N.Y. 1991).
In this case, IBM contends that Compuware never informed the Copyright Office that its Tools contain material copied from IBM products and documentation, specifically the ISPF panel screens. The evidence presented thus far suggests that Compuware copied ISPF source code into its products, and then removed the Copyright Registration symbol which indicated that IBM has a copyright in its ISPF program. While there is evidence that Compuware had permission to use ISPF panel screens as a model, there is no conclusive evidence that they were given permission to copy IBM's source code.
In light of the evidence of Compuware's unclean hands, the Court will not issue a preliminary injunction based on copyright infringement by IBM. The fact that the copying by Compuware amounts to a small percentage of the source code for the products at issue does not diminish the impact of the unclean hands doctrine. That doctrine does not distinguish between a little cheating or a lot, a small theft or a major one. In exercising its discretion to apply the unclean hands doctrine, rather, the Court looks at the type of misconduct. In this case, Compuware is accused of participating in the very act of infringement with which it charges defendant. See, Testa v. Janssen, 492 F. Supp. 198, 201 (W.D. Pa. 1980). IV. LANHAM ACT CLAIM
To state a cause of action for misleading advertisement under the Lanham Act, a plaintiff must establish the following: (1) the defendant has made false or misleading statements of fact concerning his own product or that of another; (2) the statement actually deceives, or tends to deceive, a substantial portion of the intended audience; (3) the statement is material in that it will likely influence the deceived consumer's purchasing decisions; (4) the advertisements were introduced into interstate commerce; and (5) there is some causal link between the challenged statements and harm to the plaintiff. Am. Council of Certified Podiatric Physicians Surgeons v. Am. Bd. of Podiatric Surgery, Inc., 185 F.3d 606, 613 (6th Cir. 1999).
There is ample evidence that IBM's statements that its Tools were a "total replacement" for Compuware Tools, and delivered "superior functionality while maintaining a look-and-feel similar to the Compuware products" were not literally false. Compuware did its own analysis of Version 2 of IBM's Tools, and felt that IBM posed a competitive threat. In addition, industry analysts reported that IBM's Tools were competitive with Compuware's Tools.
Compuware also cannot establish that IBM's representations actually deceived or tended to deceive a substantial portion of the intended audience. Compuware refers to 36 customers, 18 of which did not purchase IBM's Tools. The remainder of the cited customers had money-back guarantees and/or free trials, during which they evaluated IBM's Tools for themselves. The customers of both parties' Tools are highly sophisticated users and purchasers of computers. As to such sophisticated customers, the allegedly false statements are not material. Based upon the evidence adduced to date, it is very likely that a fact finder will conclude that the offending statements made by IBM are non-actionable "puffery". V. IRREPARABLE HARM
"To constitute irreparable harm, an injury must be certain, great and actual." Lucero v. Detroit Pub. Sch., 160 F. Supp.2d 767, 801 (E.D. Mich. 2001) (citation omitted). In this case, the harm alleged by Compuware does not warrant a preliminary injunction. Compuware maintains that it has suffered, and will continue to suffer, a loss of goodwill if IBM is not enjoined from selling its Tools. However, it is likely that Compuware's claimed loss of goodwill is too speculative where customers complained about Compuware's pricing and Compuware itself recognized that loss of sales and goodwill would result from legitimate competition.
Furthermore, Compuware's position is hurt by the fact that it delayed in bringing suit against IBM for more than a year and a half after IBM released Version 1 of its Tools. Compuware then waited another year after bringing suit before seeking injunctive relief. "Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiff['s] rights." Worldwide Sport Nutritional Supp., Inc. v. Five Star Brands, LLC, 80 F. Supp.2d 25, 33-35 (N.D.N.Y. 1999) (citation omitted). Plaintiff's delay in seeking enforcement of its rights tends to diminish its claim that preliminary relief is necessary.
VI. CONCLUSION
Plaintiff's motion for preliminary injunction is DENIED. Plaintiff has failed to establish a clear likelihood that it would prevail on the merits of its misappropriation of trade secrets claim. Plaintiff's tortious interference claim relates exclusively to trade secret misappropriation, and is therefore preempted by MUTSA. Defendant has successfully argued the unclean hands doctrine as an affirmative defense to plaintiff's claim of copyright infringement, for purposes of denying the preliminary equitable relief sought by plaintiff. Finally, based on the evidence presented to the Court for the preliminary injunction motion, it is very likely that a finder of fact would conclude that the allegedly false statements forming plaintiff's Lanham Act claim amount to non-actionable puffery.
In addition to finding that plaintiff has failed to show a strong likelihood of success on the merits, the Court also concludes that plaintiff has failed to demonstrate that it will suffer irreparable harm in the absence of injunctive relief.