Full opinion text
MEMORANDUM OF DECISION AND ORDER STEPHEN M. McNAMEE, Senior District Judge. Before the Court is Plaintiffs motion for default judgment. (Doc. 17.) In its Complaint, Plaintiff, HTS, Inc. (“HTS”), alleges claims against Defendants David Boley (“Boley”) and NuVision Systems (“NuVision”) for false designation of origin and trademark infringement under 15 U.S.C. § 1125(a), misappropriation of trade secrets under the Arizona Uniform Trade Secrets Act, Ariz.Rev.Stat. § 44-401 to § 44-404, and common law tort claims for breach of fiduciary duty and unfair competition. This matter was assigned and litigated before Magistrate Judge Bridget S. Bade. (Doc. 11.) On November 6, 2012, Magistrate Judge Bade held a default damages hearing in open court pursuant to Fed.R.Civ.P. 55(b)(2). (Doc.24.) On May 20, 2013, Judge Bade issued her Report and Recommendation. (Doe. 31.) She recommends that default judgment be entered against Defendant Boley in the form of damages, attorney’s fees and costs, and permanent injunctive relief. (Id.) STANDARD OF REVIEW When reviewing a Magistrate Judge’ Report and Recommendation, this Court must “make a de novo determination of those portions of the report ... to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983)). Failure to object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir.1974)). By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate Judge’s factual findings, but not necessarily the Magistrate Judge’s legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.1998) (failure to object to a Magistrate Judge’s legal conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal”); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980)). DISCUSSION Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Defendants thereto, the Court hereby incorporates and adopts the Magistrate Judge’s Report and Recommendation. CONCLUSION For the reasons set forth, IT IS HEREBY ORDERED approving, incorporating, and adopting the Report and Recommendation of Magistrate Judge Bridget S. Bade. (Doc. 31.) IT IS FURTHER ORDERED that Plaintiffs Motion for Default Judgment against Defendant David Boley is GRANTED. (Doc.17.) IT IS FURTHER ORDERED that Plaintiffs claims against Defendant NuVision be dismissed without prejudice for failure to serve pursuant to Fed.R.Civ.P. 4(m). IT IS FURTHER ORDERED that the Clerk shall enter Judgment in favor of Plaintiff HTS, Inc. and against Defendant David Boley in the form of damages in the amount of $179,474.57, plus attorney’s fees and costs in the amount of $27,694.55, for a total award of $207,169.12. The Judgment shall earn interest at the annual federal rate from the date of entry of Judgment until paid in full. IT IS FURTHER ORDERED GRANTING the following permanent injunctive relief in favor of Plaintiff HTS, Inc., and against Defendant David Boley: 1. Boley, his agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with Boley, are permanently enjoined from using any HTS trademarks, specifically HTS’s “eye-design” logo (the Mark), as shown in the exhibits to the Complaint, (Doc. 8, Exs. A and B), including formatives thereof, or any other name, mark, designation or depiction in a manner that is likely to cause confusion regarding whether Boley is affiliated or associated with, or sponsored by HTS, or that is likely to dilute the distinctiveness of HTS’s trademark or any other marks owned by HTS. Specifically, Boley is permanently enjoined from using the NuVision “eye-design” logo (the infringing Mark) on the form shown in the exhibits to the Complaint (Doc. 8, Exs. C and D). 2. Boley, his agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with Boley, are permanently enjoined from assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in paragraph 1. 3. Boley is permanently enjoined from possessing, and shall immediately destroy or surrender to HTS, all stationery, forms, printed matter, advertising, and paper goods containing HTS’s Mark, formatives thereof, and the infringing Mark. 4. Boley is permanently enjoined from using, in connection with any business or the promotion thereof, any reproduction, counterfeit, copy, or colorable imitation of HTS’s Mark, formatives thereof or trade dress; and Boley shall not utilize any designation of origin or description or representation that falsely suggests or represents any association or connection with HTS. 5. Boley, his agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with Boley, are permanently enjoined from possessing, utilizing, or disclosing any of HTS’s confidential information (including Trade Secrets), specifically including HTS’s client identification information, client contact information, and financial information. 6. Boley, his agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with Boley, are permanently enjoined from breaching fiduciary duties owed to HTS, including by retaining, using, or disclosing any of HTS’s confidential information (including Trade Secrets), specifically including HTS’s client identification information, client contact information, and financial information. 7. Boley, his agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with Boley shall immediately destroy or surrender to HTS, any and all HTS confidential and/or Trade Secret information in the possession of Boley, his agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with Boley. IT IS FURTHER ORDERED that this Court retains jurisdiction over this matter in order to enforce the injunctive relief. IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment accordingly. REPORT AND RECOMMENDATION BRIDGET S. BADE, United States Magistrate Judge. This matter is before the Court on the Plaintiffs motion for default judgment. (Doc. 17.) In its Complaint, Plaintiff, HTS, Inc. (HTS), alleges claims against Defendants David Boley (Boley) and NuVision Systems (NuVision) for false designation of origin and trademark infringement under 15 U.S.C. § 1125(a), misappropriation of trade secrets under the Arizona Uniform Trade Secrets Act (AUTSA), Ariz.Rev.Stat. § 44-401 to § 44-404, and common law tort claims for breach of fiduciary duty and unfair competition. (Doc. 8.) HTS served Boley by publication on July 22, 2012. (Doc. 14.) Based on Boley’s failure to answer or otherwise respond to the Complaint, the Clerk of Court entered default against Defendant Boley. (Doc. 16.) The Court held a hearing on HTS’s motion for default judgment and, for the reasons set forth below, recommends that default judgment be entered in favor of HTS and against Boley. (Doc. 13.) Because the record reflects that HTS has not served NuVision, and the Court previously warned HTS that failure to serve NuVision could result in dismissal of that Defendant (Doc. 13), the Court recommends that HTS’s claims against NuVision be dismissed without prejudice pursuant to Fed. R.Civ.P. 4(m). I. Procedural Background A. Jurisdiction HTS is an Arizona corporation. (Doc. 8 ¶ 1.) Since 1981, HTS has been developing and selling vision enhancement products, which it markets and sells with its “eye-design” logo (the Mark). (Doc. 8 ¶ 6, Ex. A.) HTS solicits and receives customer order's for its products throughout the United States through various means, including through the internet at its website www.homevisiontherapy.com. (Id. at ¶ 2, Ex. B.) Boley was an HTS employee from May 2005 until July 2011. (Id. at ¶ 5.) The Complaint alleges that Boley is a resident of Maricopa County, Arizona and that NuVision is an “entity of unknown origin sponsored and/or promoted by Defendant Boley with its headquarters in Maricopa County, Arizona.” (Id. at ¶¶ 7-8.) The Complaint also alleges that Defendants market and sell vision enhancement software and hardware in direct competition with HTS (Id. ¶ 9), and that Defendants do business in Arizona through various means, including using the website www.nuvisionsystems.net to offer vision-related software applications. (Id. ¶10.) This action seeks injunctive relief and monetary damages based on Boley’s alleged intentional infringement of HTS’s distinctive “eye-design” logo, or Mark, misappropriation of trade secrets, breach of his fiduciary duties, and unfair competition. Count One alleges false designation of origin and trademark infringement in violation of 15 U.S.C. § 1125(a). (Id. at ¶¶ 44-59.) Counts two, three, and four allege state law claims for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition. (Id. at ¶¶ 60-77.) The Court has original subject matter jurisdiction over HTS’s federal claim pursuant to 28 U.S.C. § 1331 and has supplemental jurisdiction over HTS’s state law claims. See 28 U.S.C. § 1367(a) (“in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims” that are part of the same “case or controversy”). B. Sufficiency of Service of Process Because a federal court lacks jurisdiction over a defendant unless he has been properly served, before determining whether to enter default judgment, the Court must “ ‘first assess the adequacy of service of process on the party against whom default is requested.’ ” See Golden Scorpio Corp. v. Steel Horse Saloon I, 2009 WL 976598, *1 (D.Ariz. Apr. 9, 2009) (quoting Bank of the West v. RMA Lumber, Inc., 2008 WL 2474650, at *2 (N.D.Cal. June 17, 2008)). See also, Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir.1992) (“A person is not bound by a judgment in a litigation to which he or she has not been made a party by service of process.”). The record establishes that HTS properly served Boley by publication. Under Federal Rule of Civil Procedure 4(e)(1) “an individual may ... be served in a judicial district of the United States by ... following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). Under Arizona Rule of Civil Procedure 4.1(2), service by publication is permitted “[w]here the person to be served is one whose residence is unknown to the party seeking service but whose last known address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action.” Id. Rule 4.1 further provides that “[w]hen the residence of the person to be served is known, the party or officer making service shall also, on or before the date of the first publication, mail the summons and a copy of the pleading being served, postage prepaid, to that person at that person’s place of residence.” Id. When service by publication is completed, the party or officer making service must file “an affidavit showing the manner and dates of the publication and mailing, and the circumstances warranting the utilization of [service by publication],” with “[a] printed copy of the publication” attached. Ariz. R. Civ. P. 4.1(i). This affidavit is prima facie evidence of compliance with the rule’s requirements. Id. Here, upon receipt of the summons from the Court, HTS, through a process server, attempted to personally serve Boley at his last known address, 2793 S. Key Biscayne Drive, Gilbert, Arizona and at several other addresses. (Doc. 14, Ex. C; Doc. 15, attachment 1.) The process server reported that he could not locate Boley at any of the addresses, and that he had learned that Boley was “jumping from place to place.” (Id.) The process server conducted several internet searches and a “skip trace” to locate Boley, but his efforts were fruitless. (Id.) In addition, HTS attempted to mail copies of the Complaint to Boley at several addresses through the United States Postal Service and to several e-mail addresses. Those attempts were also unsuccessful. (Doc. 14, Ex. B.) HTS hired a private investigator to attempt to locate Boley. That attempt also failed. (Doc. 14 at 3.) On July 23, 2012, HTS filed a Notice of Service by Publication and Affidavit stating that it had served Boley by publishing the summons in the Arizona Capitol Times on June 22, 2012, June 29, 2012, July 6, 2012, and July 13, 2012. (Doc. 12.) Plaintiff attached an affidavit of Laura Kaminski, the Public Manager of the Arizona Capitol Times, averring that the summons was published on those dates. (Doc. 12, attachment 1.) The affidavit includes a copy of the text of the summons. (Id.; Hearing Ex. 2.) The record reflects that HTS was unable to locate Boley despite its exercise of due diligence and that HTS complied with the publication procedures of Rule 4.1(2). Accordingly, service of Boley by publication complied with the federal and Arizona rules of civil procedure and provided sufficient notice of this action. See Master Fin., Inc. v. Woodburn, 208 Ariz. 70, 90 P.3d 1236, 1239-40 (Ariz.Ct.App.2004) (“[Sjervice by publication is ... sufficient when a plaintiff has exercised due diligence to personally serve a resident defendant at a last known address within the state and has complied with the publication procedures of Rule 4.1”). II. Plaintiff’s Allegations and Request for Injunctive Relief and Damages As set forth above, HTS is an Arizona corporation that has been developing and selling vision enhancement and therapy products in the United States and around the world since 1981. (Doc. 8 ¶ 6, Ex. A.) HTS alleges it has thousands of clients to whom it provides services and that it maintains information about its clients — -including client identity, contact information, pricing information, and client preferences — as confidential information in a database accessible only by select employees through a password-protected server. HTS keeps information about profit margins and business strategy confidential. (Doc. 8 ¶¶ 3-4.) HTS alleges that it has devoted considerable resources over the past seventeen years to developing its products, developing client relationships, and building its reputation in the marketplace, including through prominent and consistent use of its “eye-design” logo or its Mark. HTS alleges that it has'achieved a reputation for excellence in design, manufacture, and the sale of its vision enhancement products. (Doc. 8 ¶¶ 16-18.) HTS hired Boley in May 2005 to provide technical support services to various clients. (Doc. 8 ¶ 20.) Boley worked for HTS until July 6, 2011, when he resigned. (Doc. 29, Tr. at 81.) Approximately a year before his resignation, in August 2010, Boley expressed an interest in purchasing HTS and requested access to confidential HTS information to evaluate the potential purchase. (Doc. 8 ¶26.) HTS gave confidential financial information to Boley under the express condition that Boley could only use the information to determine whether he wanted to purchase HTS. (Id. ¶ 27-28.) In addition to that information, as part of his job duties, Boley had access to the password-protected HTS server and thus had access to confidential customer information. (Id. ¶¶ 21-22.) Before his departure from HTS, Boley formed a company called NuVision Systems and selected a logo. (Id. ¶¶ 23-24.) HTS alleges that while he was working for HTS, Boley solicited HTS’s clients to provide financing for NuVision, to do business with NuVision, or to join NuVision’s management. (Doc. 8 ¶ 6.) HTS also alleges that Boley provided prospective investors and clients with a business proposal (the Proposal). (Doc. 8 ¶¶ 30, 81, Ex. C.) The Proposal included HTS’s confidential information, including profit margin information, and prominently displayed an “eye-design” logo (the infringing Mark) that resembles HTS’s Mark. (Id. ¶¶ 30-32.) HTS further alleges that the Proposal implies that NuVision will be able to take one half of HTS’s clients. (Id. ¶ 38.) Boley also used his infringing Mark on NuVision’s website. HTS alleges that Boley’s infringing Mark is confusingly similar to HTS’s Mark and that his use of this infringing Mark was likely to cause confusion, mistake, or deception as to the source of the origin of Defendants’ goods and services, or was likely to falsely suggest a sponsorship, connection, license, or association between Defendants and their products and HTS. (Doc. 8 ¶¶ 37-40, Ex. D.) Boley continued engaging in this conduct after his departure from HTS. HTS alleges that Boley knew that his actions violated HTS’s rights in the Mark, violated Boley’s fiduciary duty as a present and past employee of HTS, and amounted to misappropriation of trade secrets and unfair competition. (Doc. 8 ¶ 34.) Pursuant to Rule 55(b)(2), HTS seeks a default judgment against Boley for violation of HTS’s trademark, in violation of 15 U.S.C. § 1125(a), misappropriation of HTS’s trade secrets, breach of fiduciary duties owed to HTS, and engaging in unfair competition. (Doc. 17-6.) HTS also requests a permanent injunction under the Lanham Act, 15 U.S.C. § 1116(a), that enjoins Boley, his agents, representatives, employees, assigns, and suppliers from using the infringing Mark and from using or disclosing any of HTS’s confidential information. (Doc. 17-7.) HTS also seeks damages in the following amounts: (1) $10,216.00 for the value of products Boley gave to HTS’s clients as part of his attempt to curry favor with those clients and to encourage them to join in Boley’s competing business; (2) $2,145.00 in “miscellaneous damages”; (3) $98,914.00 restitution for compensation HTS paid to Boley; (4) $382,470.00 for lost business opportunities withheld from HTS and pursued by Boley; and, (5) $27,157.95 in attorneys’ fees and $536.60 in costs. Finally, HTS seeks $789,662.00 in exemplary damages under Ariz.Rev.Stat. § 44-403(B) for Boley’s misappropriation of HTS’s trade secrets in violation of the AUTSA. (Doc. 17, attachment 1). III. Standards for the Entry of Default Judgment Federal Rule of Civil Procedure 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules ... the clerk shall enter the party’s default.” After a default has been entered and the defendant fails to appear or move to set aside the default, the court may, on the plaintiffs motion, enter a default judgment. Fed.R.Civ.P. 55(b)(2). Granting default judgment is within the court’s discretion. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980) (considering lack of merit in plaintiffs substantive claims, the court did not abuse its discretion in declining to enter a default judgment). When deciding whether to grant default judgment, the court considers the following factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiffs substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and, (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986). Having considered HTS’s motion for entry of default judgment, HTS’s supplemental brief, and the testimony and evidence presented at the default judgment hearing, the Court finds that default judgment is appropriate under the Eitel factors, as set forth below. A. The First, Fourth, Fifth, Sixth, and Seventh Eitel Factors The first, sixth, and seventh Eitel factors weigh in favor of default judgment in this case. The first Eitel factor considers whether HTS will suffer prejudice if default judgment is not entered. PepsiCo, Inc. v. Cal. Sec. Cans., 238 F.Supp.2d 1172, 1177 (C.D.Cal.2002). Boley has failed to appear or otherwise defend this action. In the absence of a default judgment, HTS “would be without other recourse for recovery,” to which it is entitled. See Philip Morris, 219 F.R.D. at 499. The sixth Eitel factor considers whether the default was due to excusable neglect. There is no evidence that Boley’s failure to appear or otherwise defend was the result of excusable neglect. Rather, the record reflects that Boley failed to appear after being served by publication with the Complaint. Thus, the sixth Eitel factor weighs in favor of default judgment. Under the seventh Eitel factor, the Court must also consider the policy considerations that, whenever possible, cases should be tried on the merits. Id. at 1472. The existence of Rule 55(b), however, indicates that the preference for resolving cases on the merits is not absolute. Pepsi-Co, Inc., 238 F.Supp.2d at 1177. Because Boley has not appeared or responded in this action, deciding this case on the merits is “impractical,” if not impossible. Id. Thus, the seventh Eitel factor weighs in favor of default judgment. The fourth and fifth Eitel factors are neutral in this case. The fourth Eitel factor balances the amount of money at stake in relation to the seriousness of the defendant’s conduct. Eitel, 782 F.2d at 1471-72. Here, HTS seeks injunctive relief to prevent economic harm, to protect its business reputation, protect its Mark, prevent customer confusion, and prevent other harm that was caused by Boley’s conduct. HTS also seeks monetary damages in the amount of $493,745.00 (Doc. 17, attachment 6), and exemplary damages of $789,662.00 (Doc. 30.) Although these are sizeable amounts, considering the seriousness of the allegations and the need to deter such behavior in the future, the amount at stake is not necessarily excessive. Thus, the fourth factor is neutral. The fifth Eitel factor considers the possibility that material facts may be in dispute. Eitel, 782 F.2d at 1471-72. Because Boley has failed to respond in this action, and thus has not asserted that there are material facts in dispute, the Court may not adequately weigh this factor. Thus, this factor is neutral. B. The Second and Third Eitel Factors The second and third Eitel factors consider the merits of the plaintiffs claims and the sufficiency of the complaint. As set forth below, after considering Plaintiffs claims for trademark infringement, misappropriation of trade secrets, and breach of fiduciary duty and unfair competition, the Court finds that these factors also support default judgment in this case. 1. False Designation of Origin/Trademark Infringement HTS seeks relief under Section 43 of the Lanham Act, 15 U.S.C. § 1125(a), asserting its rights as the owner of an unregistered trademark. Section 43(d) of the Lanham Act, prohibits using in commerce in connection with goods or services “[a]ny word, term, name, symbol or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another.” 15 U.S.C. § 1125(a)(1). Under § 1125(a), the ultimate test is whether public is likely to be deceived or confused by the similarity of the marks. See Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir.2008) (key determination is “whether an alleged trademark infringer’s use of a mark creates a likelihood that the consuming public will be confused as to who makes that product”). To prevail on its trademark and false designation claims, HTS must show that it owns protectable trademark rights and that Boley’s activities are likely to confuse consumers as to the source of the goods. See Brookfield Commc’ns., Inc. v. West Coast Entm’t Corp., 174 F.3d 1036, 1046 (9th Cir.1999). “[T]he standard test of ownership is priority of use.... [T]he party claiming ownership must have been the first to actually use the mark in the sale of goods or services.” Sengoku Works Ltd. v. RMC Int’l, Ltd., 96 F.3d 1217, 1219 (9th Cir.1996). Here, based on Boley’s default, there is no dispute that HTS acquired ownership of the “eye-design” Mark through its prior use in commerce for the past seventeen years. See Chance v. Pac.-Tel Teletrac Inc., 242 F.3d 1151, 1159 (9th Cir.2001) (providing a non-exclusive list of five factors for the court to consider when determining whether a plaintiff has established ownership in a mark through use in commerce); (Doc. 8 ¶¶ 1-2, Exs. A and B.) The factual allegations in the Complaint establish that HTS has valid and protectable rights in its Mark. Additionally, during the default judgment hearing, HTS provided evidence of its use of the Mark in interstate commerce and on the internet. (Hearing Exs. 4 and 5.) Rod Bortel (Bortel), HTS’s owner, testified that HTS uses its Mark on its website, brochure, letterhead, and on all goods and services the company provides. (Doc. 29, Tr. at 12.) HTS must also show that Boley’s use of an “eye-design” logo is likely to confuse consumers as to the source of the goods. “The likelihood of confusion is the central element of trademark infringement, and the issue can be recast as the determination of whether ‘the similarity of the marks is likely to confuse customers about the source of the products.’ ” GoTo.com, 202 F.3d at 1205 (quoting Official Airline Guides v. Goss, 6 F.3d 1385, 1391 (9th Cir.1993)). The Ninth Circuit has developed eight factors, the Sleekcraft factors, to analyze the likelihood of confusion: (1) the similarity of the marks; (2) the relatedness of the two companies’ services; (3) the marketing channels used; (4) the strength of the plaintiffs mark; (5) the defendant’s intent in selecting its mark; (6) evidence of actual confusion; (7) the likelihood of expansion into other markets; and (8) the degree of care likely to be exercised by purchasers. Id. (citing AMP Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979)). The eight-factor test is “pliant.” When the relevant marketing channel is the internet, the three most important Sleekcraft factors are: (1) the similarity of the marks; (2) the relatedness of the goods or services; and, (3) the “simultaneous use of the Web as a marketing channel.” Brookfield, 174 F.3d at 1055 n. 16 (citing Comp Exam’r Agency, Inc. v. Juris, Inc., 1996 WL 376600, *1 (C.D.Cal. Apr. 26, 1996)). Because Boley admitted by default that he markets products through the internet (Doc. 8 ¶¶ 5, 10), and the evidence presented at the default judgment hearing established that HTS markets its products through the internet (Doc. 8 ¶ 2; Doc. 29, Tr. at 12), the Court focuses on the three most important Sleek-craft factors. Under the Sleekcraft factors, the Court’s analysis of the likelihood of confusion begins by comparing Defendant’s allegedly infringing Mark to HTS’s Mark. The greater the similarity between the two marks, the greater the likelihood of confusion. Three axioms guide the Court’s comparison: “first, the marks must be considered in their entirety and as they appear in the marketplace, ...; second the similarity is adjudged in terms of appearance, sound, and meaning, ...; and third, similarities are weighed more heavily then differences.” GoTo.com, 202 F.3d at 1206 (internal citations omitted). Here, Boley admitted by default that the two marks are “confusingly similar.” (Doc. 8 ¶ 37.) The record reflects that both marks consist of an elliptical shape resembling an eye. Both appear along with the company’s name, HTS or NuVision, directly above or above and slightly to the right of the eye image. (Doc. 8, Exs. A and B.) Under this first Sleekcraft factor, the Court finds that the similarity of the infringing Mark to HTS’s Mark is likely to cause confusion. The second Sleekcraft factor considers the relatedness of the goods. “Related goods are generally more likely than unrelated goods to confuse the public as to the producers of the goods.” Brookfield, 174 F.3d at 1055. Here, Boley admitted by default that he markets and sells vision enhancement products and services in direct competition with HTS. (Doc. 8 ¶ 9, Exs. A and B.); See GoTo.com, 202 F.3d at 1207 (companies operating search engines were in direct competition and offered similar services). In addition, at the default judgment hearing, Bortel testified that the products Boley described in the Proposal were the same as HTS’s vision therapy products. (Doc. 29, Tr. at 68-70.) The third relevant Sleekcraft factor is the marketing channel. Both HTS and Boley use the internet to market and sell their products and services. (Doc. 8 ¶¶ 9-10, 39.) The Ninth Circuit has noted that “the Web, as a marketing channel, is particularly susceptible to a likelihood of confusion, since ... it allows for competing marks to be encountered at the same time, on the same screen.” GoTo.com, 202 F.3d at 1207. The similarity of the marks, the similarity of the goods and services offered by HTS and Boley, and their use of the internet to market those goods and services, support a finding that Boley’s use of his “eye-design” logo is likely to cause confusion among consumers as to the source of the goods and services. Having found a likelihood of confusion, under the three most important Sleekcraft factors, the Court need not consider the remaining factors. HTS has sufficiently pled Boley’s false designation of origin in violation of 15 U.S.C. § 1125(a). Accordingly, the second and third Eitel factors favor entry of default judgment as to HTS’s claim for trademark infringement in violation of 15 U.S.C. § 1125(a). 2. Misappropriation of Trade Secrets In its second ground for relief, HTS asserts a claim for misappropriation of trade secrets under the AUTSA, Ariz.Rev. Stat. § 44-403(A). (Doc. 8 ¶¶ 60-63.) To state a claim under the AUTSA, a plaintiff must allege that the defendant misappropriated a trade secret through improper means. Ariz.Rev.Stat. § 44-401. A trade secret is information that derives independent economic value “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 is “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ariz.Rev.Stat. § 44-401(4). “[A] trade secret is not simply information as to single or ephemeral business events. Rather, a trade secret may consist of a compilation of information that is continuously used or has the potential to be used in one’s business and that gives one an opportunity to obtain an advantage over competitors who do not know of or use it.” Enter. Leasing Co. of Phoenix v. Ehmke, 197 Ariz. 144, 3 P.3d 1064, 1068 (Ariz.Ct.App.1999) (internal citations omitted). A plaintiff seeking relief for misappropriation of trade secrets must describe the “subject matter of the trade secret "with sufficient particularity to separate it from matters of general knowledge in the trade or of special knowledge of those persons ... skilled in the trade.” Imax Corp. v. Cinema Tech. Inc., 152 F.3d 1161, 1164-65 (9th Cir.1998) (internal citations omitted). Under Arizona law, “matters of general knowledge cannot be appropriated as secret, [however,] a trade secret may consist of a combination of elements even though each individual component may be a matter of common knowledge.” Id. at 1069. “A list of customers, if their trade and patronage have been secured by years of business effort and advertising and the expenditure of time and money, constitutes an important part of a business and is in the nature of a trade secret.” Prudential Ins. Co. v. Pochiro, 153 Ariz. 368, 736 P.2d 1180, 1183 (Ariz.Ct.App.1987) (quoting Town & Country House & Homes Serv., Inc. v. Evans, 150 Conn. 314, 189 A.2d 390, 393-94 (1963)). Here, the allegations in the Complaint, taken as true on default, establish that HTS made reasonable efforts to maintain the confidentiality of its customer lists, contact information, and HTS’s financial information and metrics. (Doc. 8 ¶¶ 4, 32, 61.) HTS developed this information over many years, and it is a source of competitive advantage over other companies in the marketplace. (Bortel Decl. ¶ 2.) HTS derives economic value from its customer lists, contact information, financial information, and metrics as a result of the confidential nature of this information. (Doc. 8 ¶ 62.) Only a limited number of HTS employees have access to this password-protected information. (Id. ¶ 22.) Thus, the Court concludes that HTS’s customer lists, contact information, financial information, and metrics qualify as trade secrets. HTS alleged that Boley knew the confidential nature of HTS’s customer lists, customer contact information, financial information, and metrics and that he was under a duty not to disclose or misuse that information. (Doe. 8 ¶ 30; Bortel Decl. ¶ 8.) Additionally, when HTS gave Boley access to additional confidential information for the limited purpose of evaluating whether to purchase HTS, it emphasized the confidential nature of that information and the limited scope for which Boley could use it. (Doc. 8 ¶ 28.) Furthermore, Boley threatened to disclose and did disclose those trade secrets in connection with promoting his new company, NuVision. (Doc. 8 ¶¶ 5, 29-32, 34 and 38.) Under Arizona law, misappropriation of a trade secret includes the “[d]iselosure or use of a trade secret of another without express or implied consent by a person” who “[a]t the time of the disclosure or use,” “knew or had reason to know that his knowledge of the trade secret was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.... ” Ariz.Rev.Stat. § 44-401. The factual allegations in the Complaint, taken as true on Boley’s default, establish that he misappropriated or threatened to misappropriate HTS’s trade secrets. HTS sufficiently alleged that Boley misappropriated its trade secrets in the form of customer lists, customer contact information, and HTS’s financial information and metrics. Accordingly, the second and third Eitel factors favor entry of default judgment as to HTS’s claim for misappropriation of trade secrets under Ariz.Rev. Stat. § 44-403(A). 3. Breach of Fiduciary Duty and Unfair Competition Count Three alleges that Boley breached his fiduciary duties of loyalty and confidentiality under Arizona common law. (Doc. 8 ¶¶ 64-71.) Specifically, HTS alleges that Defendant Boley breached his common law fiduciary duties of confidentiality and loyalty by using or disclosing trade secrets before and after leaving his employment with HTS. (Doc. 8 ¶¶ 65, 66, 67 and 68). Count Four alleges that Boley engaged in unfair competition by “misappropriating Plaintiffs confidential information (including Trade Secrets) to divert or damage Plaintiffs business relationships, expectancies, and opportunities to the detriment of Plaintiff.” (Doc. 8 ¶ 73.) a. AUTSA Preemption The AUTSA, Ariz.Rev.Stat. § 44-407, preempts “conflicting tort, restitutionary and other laws of this state that provide civil remedies for misappropriation of trade secrets. Ariz.Rev.Stat. § 44-407(A). However, contractual and criminal remedies are excepted from preemption. Id. § 44-407(B). The AUTSA further “preempts all common law tort claims based on misappropriation of information, whether or not it meets the statutory definition of a trade secret.” Universal Engraving, Inc. v. Metal Magic, Inc., 2012 WL 4358942, *2 (D.Ariz. Sept. 21, 2012) (citing Firetrace, 800 F.Supp.2d at 1049-50 (compiling cases with such holdings)). That interpretation is consistent with the majority interpretation of an identical preemption provision in the Uniform Trade Secrets Act (UTSA), after which the AUTSA is patterned. See Firetrace, 800 F.Supp.2d at 1047-48. The statute’s purpose of creating uniform standards for liability and eliminating “other tort causes of action founded on allegations of misappropriation” would be undermined if plaintiffs could circumvent the AUTSA by “dressing up” misappropriation claims as common-law torts. Universal Engraving, Inc., 2012 WL 4358942, at *2 (citing Firetrace, 800 F.Supp.2d at 1048). In conformity with the holdings of the various courts as set forth in Firetrace, HTS may not bring any non-AUTSA claims based on a theory of misappropriation of confidential information, regardless of whether the information constituted a “trade secret” under the AUTSA. Nevertheless, the AUTSA does not bar claims based on alleged acts other than the misappropriation of information. See Firetrace, 800 F.Supp.2d at 1050. HTS’s claim of breach of the fiduciary duty of confidentiality is based on the misappropriation of confidential information, including trade secrets, and is preempted by the AUTSA. See Food Servs, of Am. Inc. v. Carrington, 2013 WL 424507, *4 (D.Ariz. Feb. 4, 2013) (the AUTSA preempted plaintiffs common law tort claims because they were based on the misappropriation of confidential information). Plaintiffs unfair competition claim is also preempted. In Arizona, the common law doctrine of unfair competition “encompasses several tort theories, such as trademark infringement, false advertising, ‘palming off,’ and misappropriation.” Fairway Constructors, Inc. v. Ahern, 193 Ariz. 122, 970 P.2d 954, 956 (Ariz.Ct.App.1998) (internal citations omitted). “[A]n unfair competition claim is preempted unless it alleges elements that make it qualitatively different from a copyright infringement claim.” Id. Under Arizona law, “[t]he universal test [for unfair competition] is whether the public is likely to be confused.” Doe v. Arizona Hosp. & Healthcare Ass’n, 2009 WL 1423378, *11 (D.Ariz. Mar. 19, 2009) (quoting Boice v. Stevenson, 66 Ariz. 308, 187 P.2d 648, 653 (1947)). Plaintiffs claim of unfair competition is not qualitatively different from his misappropriation of trade secrets claim and thus, it is preempted. However, HTS’s allegation that Boley breached his duty of loyalty to HTS includes conduct other than the misappropriation of information. Accordingly, the AUTSA does not preempt that claim. b. Breach of the Duty of Loyalty In Arizona “an employee ... owes his ... employer ... a fiduciary duty,” which includes a duty of loyalty. McCallister Co. v. Kastella, 170 Ariz. 455, 825 P.2d 980, 982-83 (Ariz.Ct.App.1992); see also Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1085 (9th Cir.2003) (stating that “nothing in the Restatement indicates ... that ordinary [or low-level] employees have no duty of loyalty” and finding that superintendent and laborer for sewage repair and maintenance company owed employer a duty of loyalty); ACT Group Inc. v. Hamlin, 2012 WL 2976724, *5 (D.Ariz. Jul. 20, 2012) (stating that “[a]n employee clearly owes his employer a ‘fiduciary duty of loyalty.’ ”) (quoting McCallister, 825 P.2d at 982); Restatement (Third) of Agency § 1.01 (stating that all employees are agents, and that “[a]s agents, all employees owe a duty of loyalty to their employers” regardless of how “ministerial or routinized a work assignment may be”). “Consistent with the fiduciary duty of loyalty, an employee may not ... compete with his employer concerning the subject matter of the employment” during the period of employment. Sec. Title Agency, Inc. v. Pope, 219 Ariz. 480, 200 P.3d 977, 989 (Ariz.Ct.App.2008) (citing McCallister, 825 P.2d at 982); see also Evans v. Valley Radiologists, Ltd., 127 Ariz. 177, 619 P.2d 5, 9 (1980) (doctor who was hired by radiologists to perform radiation oncology treatments owed them a duty of loyalty). Before termination, an employee may make arrangements to compete, but he “cannot properly use confidential information peculiar to his employer’s business and acquired therein.... He [may not] solicit customers for such rival business before the end of his employment, nor can he properly do similar acts in direct competítion with his employer’s business.” McCallister, 825 P.2d at 982. “[Wjhether an employee’s actions constitute a breach of the fiduciary duty of loyalty is a question of fact to be decided by the trier of fact ‘based on a consideration of all the circumstances of the case.’ ” Sec. Title, 200 P.3d at 990 (quoting Jet Courier Serv. v. Mulei, 771 P.2d 486, 494 (Colo.1989)). Here, the allegations in the Complaint, taken as true on Boley’s default, establish that he breached his fiduciary duty of loyalty to HTS by soliciting HTS’s customers for the rival business he was forming while still employed by HTS. (Doc. 8 ¶¶ 5, 30-32 and 38; Doc. 29, Tr. at 50.) In addition, Boley, who provided technical advice to customers and who was also being groomed in the “clinical” and sales aspects of the business, used HTS’s property — including product “kits,” company communication resources such as e-mail and phones, company time, and the company name — to gain access to HTS’s clients, strengthen his relationships with those clients, and entice them to join his business venture. (Doc. 8 ¶¶ 25, 31, 38; Doc. 29 at 93-94.); see Eaton Corp. v. Giere, 971 F.2d 136, 141 (8th Cir.1992) (concluding that a product engineer breached his duty of loyalty by soliciting his employer’s customers for himself); ACT Group, 2012 WL 2976724, at *6 (allegations that sales trainer had created a sales training program that was substantially derived from his employer’s proprietary sales training concepts and materials sufficiently alleged a breach of the duty of loyalty). Accordingly, the second and third Eitel factors also favor entry of default judgment as to HTS’s claim for breach of the duty of loyalty. IY. Standards for an Award of Damages in a Default Judgment Once default is entered, the well-pleaded factual allegations in the complaint are taken as true, except for those relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.1987). However, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir.1992) (citing Darning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.1978)); see also DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir.2007) (for default judgment purposes, a defendant is not held to admit facts that are not wellpled or conclusions of law); 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2688, at 63 (1998) (the court must “consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law”). If the court determines that the allegations in the complaint establish liability, it must next determine the “amount and character” of relief to award. 10A Wright, Miller, & Kane, 2688 at 63; James v. Frame, 6 F.3d 307, 310 (5th Cir.1993) (district court has “wide latitude” and discretion in determining the amount of damages to award upon default judgment). Entry of a default judgment for monetary damages is appropriate without a hearing if “the amount claimed is a liquidated sum or capable of mathematical calculation.” Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir.1981) (no hearing necessary when documents show that the judgment amount is based upon a definite figure). Unliquidated and punitive damages, however, require “proving up” at an evidentiary hearing or through other means. See Black & Decker, Inc. v. All Spares, Inc., 2010 WL 3034887, *3 (D.Ariz. Aug. 3, 2010). “[P]laintiffs burden in ‘proving up’ damages on a motion for default judgment is relatively lenient. If proximate cause is properly alleged in the complaint, it is admitted upon default. Injury is established and plaintiff need only prove that the compensation sought relates to the damages that naturally flow from the injuries pled.” Id. (citing Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D.Cal.2003)). “In determining damages, the court can rely on the declarations submitted by the plaintiff.” Philip Morris, 219 F.R.D. at 498. The plaintiff must provide evidence of its damages, and the damages “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c); see also Freemyer v. Kyrene Village II, LLC, 2011 WL 42681, *3 (D.Ariz. Jan. 6, 2011). Y. Remedies Having found that default judgment should be entered in favor of HTS against Boley in this matter, the Court considers HTS’s claimed damages and request for injunctive relief. A. Lost Business Opportunity HTS seeks $382,470.00 in damages for a lost business opportunity withheld from HTS and pursued by Boley in violation of his fiduciary duties and in violation of the AUTSA and the Lanham Act. (Doc. 17, attachment 1 at 18, attachment 6 at 2-3.) HTS alleges that the value of the lost opportunity was $191,235.00 per year and seeks to recover that lost profit for two years. As discussed below, the Court finds that the request for this amount of damages is speculative and not supported by the record. 1. The IRIS Clinics Lost Business Opportunity During the default judgment hearing, HTS’s owner, Bortel, testified regarding the lost business opportunity. Bortel testified that on July 16, 2010, while still an HTS employee, Boley received an e-mail from Dr. Patrick Quaid, an HTS client, presenting HTS with a business opportunity to place its products in 300 vision clinics in Canada. (Bortel Decl. at ¶¶ 10, 18; Doc. 29, Tr. at 60, Hearing Ex. 8.) Bortel testified that Boley did not share this inquiry with HTS or Bortel and that if Bortel had known about this inquiry, HTS could have acted immediately to bring this opportunity to fruition. (Doc. 29, Tr. at 48-49.) Bortel testified that after Boley resigned from HTS, he became suspicious of Boley’s activities after receiving a copy of the Proposal that Boley was circulating; therefore, Bortel searched the computer that Boley used as an employee at HTS and found numerous e-mails in a deleted folder. (Doc. 29, Tr. 20-21.) Thus, Bortel learned that on July 15, 2010, Dr. Quaid sent Boley an e-mail about visiting HTS in Arizona for a demonstration of HTS’s software. (Hearing Ex. 8.) Dr. Quaid stated that he was interested in adding “both systems” to his practice and that he would like a demonstration before “committing $7000-$8000” to the in-office systems. (Id.) Boley responded that HTS did not have a “demonstration room,” but that Dr. Quaid could stop by anytime to see HTS’s programs. (Id.) On July 16, 2010, Dr. Quaid replied he was “a part owner of the .. (IRIS The Visual Group),” a 300-doctor network that includes 165 clinics and three laser eye surgery centers. (Doc. 29, Tr. at 101, Hearing Ex. 8.) Dr. Quaid reiterated his interest in visiting HTS for a “demo session” of HTS’s products because he did not “want to give uninformed advice to over 300 of [his] fellow ODs unless [he could] really be knowledgeable in this in-office system.” (Hearing Ex. 8; Doc. 29, Tr. at 24 and 30.) Additional e-mails show that as early as March 2011, before Boley resigned from HTS in July 2011, Boley and Dr. Quaid were engaged in negotiations and planning regarding competing vision services and products. (Doc. 17, Exs. A and B to attachment 5.) In a March 24, 2011 e-mail, Dr. Quaid opines that he and Defendant Boley “could come up with some awesome add ons/extras with the HTS program — let me know when you are ready to discuss further — given all that is going on on your end I will leave it in your hands until the dust clears so to speak.” (Hearing Ex. 16.) E-mail exchanges between Dr. Quaid and Boley in April 2011 indicate that they had been discussing “improving the BVA program,” and meeting at the upcoming 2011 College of Vision Development (COVD) conference in Las Vegas to “hash out ideas” about building “your brand” in Canada. Dr. Quaid and Boley refer to a “deal” that had not been finalized, but that was getting “closer to completion.” (Hearing Exs. 10, 39, 40; Doc. 29 Tr. at 111.) Dr. Quaid represented that he “could easily multiply your business in Canada 10-fold at least.” (Id., Ex. 40.) The e-mails also indicate that Dr. Quaid and Boley exchanged personal cell and home phone numbers, and e-mail addresses during April and May 2011. (Hearing Exs. 11, 40, 41-43.) In early June 2011, Defendant Boley stated that he was “finalizing a few more things.” (Hearing Ex. 13.) In late June 2011, Dr. Quaid indicated that he had another optometrist who “will be setting up a doctor account ... and that he is 100% clear that the kits are always ordered directly by the doctors — not by IRIS.” (Hearing Exs. 9 and 12.) Defendant Boley responded that he would e-mail Dr. Quaid his “proposal this afternoon, lets (sic) plan on a phone conversation later this week.” (Id.) On June 27, 2011, Defendant Boley sent the Proposal to Dr. Quaid, representing that Boley was developing a business to compete with HTS, and projecting that he would be able to take one half of HTS’s clients. (Bortel Decl. ¶ 12, Exs. A, C, and D.) The Proposal identified Dr. Quaid as an advisor. (Id. at Ex. D) 2. HTS’s Calculation of Damages for Lost Business Opportunity HTS characterizes Dr. Quaid’s July 16, 2010 e-mail as presenting a business opportunity for HTS to place its vision therapy products in all 165 IRIS clinics in Canada. (Doc. 29, Tr. at 23, 30.) HTS contends that rather than sharing that opportunity with HTS, Boley worked with Dr. Quaid to develop NuVision and to later exploit the IRIS opportunity. (Doc. 29, Tr. at 24, 32.) Bortel calculated HTS’s damages from the lost IRIS opportunity based on HTS’s average yearly sales per clinic in Canada ($1,159.00), multiplied by the number of IRIS climes (165), for two years (2) from July 16, 2010, the date of Dr. Quaid’s inquiry, until the date HTS filed suit in 2012. (Bortel Decl. at ¶ 18.) Thus, Plaintiff calculates the damages for this lost business opportunity as $1159.00 X 165 X 2 = $882,470.00. The full amount of damages that HTS seeks based on the lost IRIS opportunity are not sufficiently supported and therefore are speculative. “It is well settled that conjecture or speculation cannot provide the basis for an award of damages.” Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz. 174, 680 P.2d 1235, 1247 (Ariz.Ct.App.1984). “Damages that are speculative, remote or uncertain may not form the basis of a judgment.” Cowry Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 446 P.2d 458 (1968). Although the Complaint sufficiently alleges that Boley redirected a business opportunity that would have gone to HTS but for Boley’s breach of his fiduciary duties, HTS has not sufficiently established the amount of damages alleged, $191,235.00 per year for two years. Bortel testified that if Defendant Boley had shared Dr. Quaid’s July 2010 e-mail, he would have acted on the proposal that day and that “it would have come to fruition” because HTS had the vision therapy products available to place in the IRIS clinics and Dr. Quaid had the inclination and the ability to do so. (Doc. 29, Tr. at 49, 65.) However, Bortel later testified that HTS still sells Dr. Quaid an average of $10,000.00 worth of HTS products annually for his own clinic and that Dr. Quaid has not contacted HTS to propose placing HTS products in the IRIS clinics. (Id. at 66, 75, 80.) In addition, Bortel testified that Boley and Dr. Quaid have not yet succeeded in selling vision therapy products in the 165 IRIS clinics in Canada because they do not have product. (Id. at 61.) Bortel also testified that he did not know the number or identity of the IRIS owners, he did not know the extent of Dr. Quaid’s ownership interest in IRIS, and he did not have any information that would suggest that those other owners had any interest in HTS products or that they would have agreed to purchase HTS products for all 165 IRIS clinics. (Id. at 73, 100.) Bortel did not know if Dr. Quaid had the ability to unilaterally decide to purchase the HTS vision products for the IRIS clinics. (Id. at 100.) He speculated that Dr. Quaid would have had to make a proposal to the other doctors “that made sense to them.” (Doc. 29 at 100.) In June 2011, Dr. Quaid sent an e-mail to Boley stating that he had another optometrist who “will be setting up a doctor account ... and that he is 100% clear that the kits are always ordered directly by the doctors — not by IRIS.” (Hearing Exs. 9 and 12.) Although this e-mail indicates that at least one doctor in the IRIS group may have been interested in ordering “kits” in 2011, it also indicates that the individual doctors, not IRIS or Dr. Quaid, ordered product for their clinics. Bortel testified that he believed that Dr. Quaid could get HTS’s products in some or most of the IRIS clinics based on Dr. Quaid’s confidence in his e-mails to Boley. (Doc. 29, Tr. at 109-10.) Bortel relied, in part, on an April 19, 2011 e-mail from Dr. Quaid to Boley stating that he had been giving continuing education lectures to IRIS doctors about vision therapy products and stated that he “could easily multiply your business in Canada tenfold at least.” (Id. at 110, Hearing Ex. 40.) Bortel testified, however, that continuing education lectures were not “sales presentations.” While Dr. Quaid may have given the IRIS doctors information about a “clinically viable” and “economically viable” vision product, the Court finds that Dr. Quaid’s purported enthusiasm about the product does not indicate that any of the 300 doctors in the IRIS Vision Group would have purchased the vision therapy products. Furthermore, Bortel’s statements regarding Dr. Quaid’s authority to direct or persuade the IRIS clinic owners to purchase HTS products carry little weight. See Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir.1995) (declarations on information and belief are entitled to no weight when declarant lacks personal knowledge). In Arizona, “ ‘certainty in amount’ of damages is not essential to recovery when the [fjact of damage is proven.” Harris Cattle Co. v. Paradise Motors, Inc., 104 Ariz. 66, 448 P.2d 866, 868 (1968) (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931)). However, when seeking damages based on loss of business or profits based on tortious misconduct, the plaintiff “must show the amount of [its] damages with reasonable certainty and a reasonable degree of accuracy, and ... the testimony establishing the loss must be free of speculation and conjecture.” Harris Cattle, 448 P.2d at 868 (quoting Sposari v. Matt Malaspina and Co., 63 Wash.2d 679, 388 P.2d 970(1964)). HTS’s request for $382,470.00 in damages based on the lost opportunity to place HTS products in 165 IRIS climes is too speculative to support an award of the full amount of damages requested. See Lindy, 982 F.2d at 1407 (plaintiff must provide a “reasonable basis for computation” of its lost profit); eAdGear, Inc. v. Liu, 2012 WL 2367805, *18 (N.D.Cal. June 21, 2012) (declining to award the amount of compensatory damages requested for a violation of the Lanham Act because “the evidence provided [did] not seem to prove the specific amount requested with sufficiently reasonable certainty”). HTS, however, did establish that it would have immediately responded to Dr. Quaid’s inquiry, if Boley had sent the inquiry to Bortel. (Doc. 29, Tr. at 64-65, 71.) HTS also established that it had the ability to quickly respond to much larger product orders from Dr. Quaid. (Id. at 75-76.) Therefore, the Court concludes that HTS has established that it lost a business opportunity as a result of Boley’s breach of his fiduciary duty of loyalty, and his violations of the AUTSA and the Lanham Act. 3. Recommended Damages for Lost Business Opportunity Under the AUTSA, plaintiffs may recover damages for misappropriation of a trade secret. Ariz.Rev.Stat. § 44-401-07. A plaintiff may recover “both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.” Ariz.Rev.Stat. § 44-403(A). Similarly, the Lanham Act, 15 U.S.C. § 1117(a), provides for an award, based on equitable considerations, of “any damages sustained by the plaintiff....” A plaintiff must prove both the fact and the amount of damage. Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir.1993) (citing 2 J. Thomas McCarthy, Trademarks and Unfair Competition § 30:27, at 511 (2d ed.1984)). “Damages are typically measured by any direct injury which a plaintiff can prove, as well as any lost profits which the plaintiff would have earned but for the infringement.” Id. An award based on plaintiffs damages requires some showing of actual loss. Lindy Pen, 982 F.2d at 1408 (citing Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 642 (D.C.Cir.1982)). A plaintiff is only entitled to damages resulting from the infringement, and not a windfall. Bandag, Inc. v. Al Bolser’s Tire Stores, Inc., 750 F.2d 903, 918 (Fed.Cir.1984). Thus, to determine the value of this lost business opportunity, the Court must determine how many doctors in the IRIS clinics would have agreed to present vision therapy products to their patients and how many patients would have agreed to purchase those products. Bortel testified that only 5% to 7% of optometrists offer vision therapy services to their patients and so “it’s really a closed audience.” (Doc. 29, Tr. at 11.) He also testified that approximately 10% of patients will have convergence insufficiency and need vision therapy. (Id. at 76.) Therefore, he explained that if a two-doctor clinic, such as the IRIS clinics, were working at capacity, they would see forty patients per day, and 10%, or four, of those patients would need vision therapy. (Id. at 76-77.) He explained, however, that the number of those patients who would purchase vision therapy products would depend upon the doctors’ ability to sell the product. (Id. at 77.) Some doctors sell three to five products per month; others, like Dr. Quaid, sell a much higher number. (Id.) Because of these variables, to predict the amount of additional annual sales from each IRIS clinic, Bortel averaged the amount of HTS’s sales in 2011 to its existing doctor-clients in Canadian clinics as $1,159.00; Bortel testified that 2011 was an average and representative sales year. (Id. at 80.) Because this prediction is based upon information drawn from HTS’s actual sales experience in Canadian clinics, the Court finds that $1,159.00 per year is a reasonable estimate for the value of the lost business opportunity for annual sales in an IRIS clinic. The record, however, does not support HTS’s claim that doctors in all 165 IRIS clinics would have agreed to sell vision therapy products. Instead, based on Bortel’s testimony that only 5% to 7% of optometrists offer vision therapy services to their patients, the Court concludes