Port-A-Pour, Inc. v. Peak Innovations, Inc. (49 F. Supp. 3d 841, 2014)

United States District Court for the District of Colorado 2014-06-17

Commerce and Trade Patents

Citations

Full opinion text

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Wiley Y. Daniel, Senior United States District Judge

I. INTRODUCTION

THIS MATTER comes before the Court on Plaintiffs Motion for Preliminary Injunction [the “preliminary injunction motion” or the “motion”] filed on October 25, 2013. (ECF No. 35.) The Court has reviewed Plaintiffs motion and the Declarations in support thereof (ECF Nos. 35:1-8, 36), Defendants’ response filed November 8, 2013 (ECF No. 44), and Plaintiffs reply filed December 6, 2014 (ECF No. 50).

The Court conducted an evidentiary hearing on the motion on January 8, 13 and 14, 2014. The Court heard testimony from Neil Oberg and Jerome Doherty for Plaintiff Port-a-Pour, Inc. [“Port-a-Pour”] and from Mark Nelson for the Defendants. The Court refers to the exhibits received in evidence at the hearing by number, and to the transcripts by the abbreviation “Tr.” The parties submitted proposed findings of fact and conclusions of law on March 6, 2014 (ECF Nos. 72 and 73). Additionally, a “Notice of Supplemental Authority in Support of Defendants’ Opposition to Plaintiffs Motion for Preliminary Injunction” (ECF No. 44) was filed on May 29, 2014. Transcripts of the evi-dentiary hearing were filed on February 24 and May 8, 2014 (ECF Nos. 69-71, 98).

By way of background, Port-a-Pour is in the concrete business and claims that it spent over 20 years developing proprietary designs for equipment that it sold in the industry, including a portable low-profile concrete batch plant known as the “Series II” that is at issue in this litigation. Port-a-Pour has two U.S. Patents and a U.S. Trademark regarding its products. It licensed its designs, patents and the “Port-a-Pour” trademark to Defendant Peak Innovations, Inc. [“Peak”] under agreements that its intellectual property rights and trade secrets are proprietary and exclusively owned by Port-a-Pour. The agreements provided that Peak’s sole right to use Port-a-Pour’s intellectual property and trade secrets derived from the license, and upon the termination of the license Peak must immediately cease all further-use of such rights and return all of Port-a-Pour’s designs, specifications and other proprietary information.

Port-a-Pour claims that after it terminated the license agreement, Peak usurped Port-a-Pour’s rights and continued to use them for its own benefit, in derogation of the license, the parties’ agreements, and Port-a-Pour’s legally protected intellectual property rights. Port-a-Pour seeks to enjoin Peak’s illegal use of its rights. The Amended Complaint alleges claims of Patent Infringement, Violation of the Lanham Act, Infringement of Registered Trademark, Violation of the Cyberpiracy Prevention Provisions of the Lanham Act, Misuse of Protected information in Violation of Colorado Uniform Trade Secrets Act, Breach of Licensing Agreement, Breach of First and Second Confidentiality Agreements, and Civil Conspiracy.

II. FINDINGS OF FACT

1. Port-a-Pour is a Colorado corporation headquartered in Berthoud,- Colorado. Beginning in approximately 1984, Port-a-Pour began developing machinery used for producing large quantities of concrete for construction projects. Over the ensuing 22 years, Port-a-Pour refined its products and technologies.

2. Port-a-Pour’s designs are protected by two patents (U.S. Patent No. 6,876,-904—the “904 Patent”—and U.S. Patent No. 7,050,886—the “886 Patent”), each of which relate to a chemical metering system for usé with concrete batch plants (also referred to as the chemical admixture or admix system). (Exs. 1, 2). Port-a-Pour also received U.S. Trademark Registration No. 3,070,009, International Class and U.S. Class 013, 019, 021, 023, 031, 034, 035, for the name “Port-a-Pour” for use in connection with a concrete batch mixing machine (the “Trademark”). (Ex. 9). The Patents and Trademarks were duly and validly issued by the United States Patent and Trademark Office.

3. Port-a-Pour claims to have combined several technologies and elements into its line of products to create a portable concrete batch plant, ie., a plant capable of producing large quantities of high-grade concrete, along with supporting plant equipment. Port-a-Pour’s Series II concrete batch plant consists of a single trailer with (a) a powder silo or cement bin (for cement), (b) two aggregate bins for crushed rock and sand, (c) a twin shaft blender that blends the dry ingredients, (d) a chemical metering system, and (e) a computer system with custom software to control all of the components. (Tr. 18:15-20:15; 27:15-18; 33:3-34:25; 51:17-23.)

4. Port-a-Pour’s product line also includes a standalone horizontal powder silo built onto its own separate trailer, which is used if the desired mix design requires fly ash as well as cement powder [the “Auxiliary Silo”]. (Tr. 26:1-28:23.) Neil Oberg of Port-a-Pour testified that the Auxiliary Silo was developed in response to a new industry requirement for a second fly ash (as opposed to cement) powder to be incorporated into concrete batch mixes. (Id. 28:8-21.) Mark Nelson of Peak also testified that this was the reason that a horizontal silo such as the Auxiliary Silo was necessary. (Id. 261:19-24.) The Auxiliary Silo functions exactly the same as the powder silo (cement bin) built onto the plant, and integrates into the plant’s computer control system. (Id. 27:21-24.) Nevertheless, Mr. Nelson maintains that the Auxiliary Silo and the Series II are separate and distinct products. (Id. 355:21-356:5.)

5. Mr. Oberg testified on behalf of Port-a-Pour that the components of the Auxiliary Silo, including the weighing sys-tern, the Airslide, and the low-profile dust filter, make it “extremely portable so there’s really no dismantling of any components to move it from one site to the next. It’s designed to be moved and set up relatively quickly.” (Tr. 30:16-19.) He also testified that the Auxiliary Silo is low-profile as it does not require a crane for set up. It is portable because it is on a set of wheels, and is typically hauled with a semi-tractor. (Id. 29:4-10.) It has a low-profile dust filter, which is a Port-a-Pour development, and it also has Airslides (in the example he testified to there were two Airslides, one on the front and one to the rear with a butterfly valve which is typically an automatic butterfly valve in the center). (Id. 29:11-15.)

6. Mr. Oberg testified that Port-a-Pour developed the low-profile dust filter out of necessity to gain extra volume, as the commercial dust filters that were used were built on the back of the plant and reduced storage volume. (Tr. 45:6-20.) The Airslide is the delivery mechanism, and it is high volume air under relatively low pressure. (Id. 29:16-17.) That was another innovation by Porfr-a-Pour, as other plants were not using Airslides in their portable plants. (Id. 46:1-7.) The Air-slide went through several iterations by design, as Port-a-Pour wanted its angle to be “sharp” enough that there was adequate free fall of the material. (Id. 49:12-51:15.) It is designed to meter out cement and/or fly ash. It works in conjunction with an auger, and is set up on load cells (electronic weighing instruments). (Id. 29:16-25.) This allows control of the cement delivery and the ability to measure the cement by decumulation. (Id. 46:18-23.)

7. Port-a-Pour developed the design and components of the Series II batch plant and the Auxiliary Silo, according to Mr. Oberg, and he testified that these are propriety. (Tr. 29:11-12; 30:13-32:5; 34:16-35:15; 45:8-54:15.) He also stated that the importance of the Series II over earlier iterations “was that it had higher capabilities for delivery, meaning it was more productive”, it “had larger blender sizes” and “a little larger Airslide and butterfly control so we could deliver a little more cement in a shorter period of time”, it had “a little better blending control” over dry power with the aggregates, it was “a more open” and a “more serviceable” plant, and “[i]t was higher off the ground so if there was spillage it was easier to clean around the plant.” (Id. 56:2-16.)

8.Defendants presented evidence, however, that the functional components of concrete batch plants and horizontal silos are widely known in the marketplace. For example, belt or delivery conveyors are used in portable concrete batch plants and other industries, and there is nothing novel or secret about them. (Tr. 125:24-126:3; 159:4-160:11.) Airslides also are not a novel way to discharge a bin, and are used in cement plants to remove powders and cements. (Id. 140:16-141:21; 151:3-16; see also 141:1-144:9.) An Airslide to discharge a horizontal bin is not a novel application, as Defendants presented evidence that the Fuller Airslide trailer uses this configuration. (Id. 145:9-19.) Likewise, there are other manufacturers of chemical admixture systems for concrete batch plants, although Mr. Oberg testified that such systems are unusual. (Id. 114:8-19.) Butterfly valves are not novel. (Id. 157:18-25.) There are many manufacturers of aggregate bins, and it is not a novel concept. (Id. 134:9-135:2.) Decumulative weighing of aggregate bins is not a novel concept. (Id. 134:12-14.) Horizontal dust filters are not unique in technology, including the pulse-jet type filters manufactured by Port-a-Pour, and are available on the market. (Id. 161:8-162:6.)

9. Port-a-Pour does not claim that every blender for a concrete batch plant, every conveyor for a concrete batch plant, every load cell for a concrete batch plant, every horizontal filter for a concrete batch plant, every horizontal silo for a concrete batch plant, every horizontal silo using an air slide as a way to empty it, and every admixture system for a concrete batch plant is using its proprietary information. (Tr. 162:10-163:16.) It also does not claim that every horizontal powder bin infringes its patent, that every portable concrete batch plant infringes its patent or violates its trade secrets, that every horizontal bin violates its trade secrets, or that every chemical admixture system violates its trade secrets. (Id. 250:10-251:1.)

10. In April 2006, Port-a-Pour entered into agreements with Defendants Peak and Mark Nelson. Mr. Nelson is the president and sole shareholder of Peak. Pursuant to a Licensing Agreement executed on April 14, 2006 (Ex. 3), Peak agreed to pay annual fees to license the right to manufacture and sell Port-a-Pour’s products.

11. Mr. Oberg testified that the products Peak was licensed to manufacture and sell under the License Agreement were Port-a-Pour’s Series II batch plant and auxiliary optional equipment. (Tr. 8:23-25.) Consistent with this, the Licensing Agreement stated in section 2.01 that “Li-censor hereby grants Licensee the indivisible, and non-assignable ... right and license to make, use, sell and assemble Agreement Products in the designated territory.” (Ex. 3.) On page one of the Agreement, “Agreement Product” or “Products” are defined as “a portable batch plant for making concrete, and plant support equipment.” (Id.; see also Tr. 9:3-23.) Section 1.01 of the Agreement defines “Agreement Products” more broadly, as “any product in which Port-a-Pour has a protected proprietary interest, including without limitation, any product disclosed in trade secrets or other information disclosed to Peak, specifically including trade secrets and proprietary information contained in the Confidentiality and Non-Disclosure Agreement .” (Ex. 3.) Section 1.02 defines the term “trade secrets” as:

all that information, drawings, data, architectural specifications and the like (herein collectively called “information”) known from time to time by Licensor relevant to the manufacture, use, sale, and assembly of a mobile concrete batch plant, including all information, drawings, data, software, source code, design specifications, wiring diagrams, blending systems, and other specifications related to Agreement Products, which is contemplated to be transferred to Licensee by Licensor in order to enable licensee to manufacture, use, sell, and assemble the mobile concrete batch plant.

(Id.) It is undisputed that the mobile concrete batch plant referred to in Section 1.02 is Port-a-Pour’s Series II plant. (Tr. 102:23-103:15.)

12. While Defendants assert that the products subject to the Agreement did not include the Auxiliary Silo (see Mr. Nelson’s testimony at Tr. 364: 8-11), Mr. Doherty testified that the Auxiliary Silo is subject to the Agreement as “plant-supported equipment”. (Tr. 225:25-226:6.)

13. The parties also executed confidentiality agreements. In the Confidentiality and Non-Disclosure Agreement executed on April 13, 2006, Peak and Mr. Nelson agreed not to disclose or misuse Port-a-Pour’s proprietary information or its trade secrets “pertaining to Port-a-Pour’s business, patent and intellectual property, business plans, and financial matters” except as permitted under the Agreement. (Ex. 4.) “It is expressly understood and agreed by Recipient that such information is owned by and proprietary to Port-a-Pour, that such information is maintained as confidential, and shall be deemed the trade secrets of Port-a-Pour, which shall not be disclosed to any third party under any circumstance, or used to create any competing business entity, products or consulting services, except with the separate written consent of Port-a-Pour.” (Id.) It defined “Agreement Products” and/or “Protected Information” as “all information which is proprietary to, and trade secrets of, Port-a-Pour pertaining to a portable concrete batch plant and plant support equipment, specifically including any and all patents issued or pending to Port-a-Pour and all other trade secrets disclosed by Port-a-Pour to Recipient relating to the portable concrete batch plant and plant support equipment.” (Id.) On July 18, 2007, a second Confidentiality and Non-Disclosure Agreement was executed containing identical terms to the first one. (Id.)

14. Neil Oberg produced drawings and specifications for the concrete batch plant and Auxiliary Silo, which were in existence prior to the time the license was entered into with Peak. (Tr. 26:1-28; 27:8-12; 36:2-24). Drawings were produced in' a format known as AutoCAD, which is a computer-aided design format widely used in industry. (Id. 17:14-18:4.) Port-a-Pour used the AutoCAD drawings to build a batch plant and Auxiliary Silo in Ber-thoud, Colorado that was operating at the time that Port-a-Pour was having discussions with Peak. (Id. 32:6-24; 104:25-105:3.)

15. The drawings were provided to Peak as required per the Licensing Agreement, and Mr. Oberg testified that the drawings contained the materials and measurements necessary to fabricate a plant. (Tr. 21:23-22:12; 24:14-25:17; 104:19-24.) The drawings were not manufacturing drawings, however, and Mr. Oberg stated that more detail was required to manufacture a plant. Mr. Nelson acknowledges that he was told by Port-a-Pour that the drawings were not complete enough to be considered manufacturing drawings. (Id. 328:9-14.) Mr. Oberg stated that whatever details were missing from the drawings, Port-a-Pour was there to answer questions to support Peak in its manufacturing efforts and to provide technical assistance, per the Licensing Agreement. (Id. 23:8-20.) For example, Mr. Oberg testified that while the drawings did not have technical information for the Airslides or specifications for motors, wiring and other things, he would have given that information to Peak. (Id. 110:1-21.)

16.Mr. Doherty testified as to the measures that Port-a-Pour takes to keep its drawings and specifications confidential; namely, the AutoCAD drawings discussed by Mr. Oberg in his testimony. (Tr. 186:5-188:1.) Port-a-Pour keeps the drawings in a locked office and only Mr. Oberg and Mr. Doherty have access to that office. (Id. 188:2-7.) While the drawings are on Mr. Oberg’s computer, he keeps the computer with him and it is password protected. (Id. 188:8-15.) Mr. Doherty testified that this information has been released to outsiders only twice (one of which was to Peak), and on both occasions under confidentiality agreements or nondisclosure agreements. (Id. 189:2-20). Other employees, such as the fabricators who build the machines, receive drawings on a need-to-know basis, ie., a single drawing to build the specific subassembly. (Id. 188:7-23.) Once that subassembly is complete, the drawing is destroyed. (Id. 188:24-489:1.)

17. However, Port-a-Pour began transferring the AutoCAD drawings related to the Series II batch plant prior to the time the Licensing Agreement went into effect with Peak. (Tr. 101:11-19; 105:9-11; 108:3-7; 257:2-258:1.) Mr. Nelson testified that Peak got its first information from Port-a-Pour in December 2005 or January 2006. (Id., 257:2-6.) Indeed, Peak began building a Series II plant prior to the signing of the Licensing Agreement. (Id. 103:26-104:5.) Mr. Doherty testified that at the time Port-a-Pour provided the drawings to Peak, it had an “understanding in principle” about the confidentiality of the drawings; namely, that Port-a-Pour would let Peak and Mr. Nelson see the drawings and work with them until they had a signed agreement. (Id. 193:7-13.) He further testified that Exhibit 4, the Confidentiality and Nondisclosure Agreement dated April 13, 2006, is the agreement that was eventually signed to memorialize that agreement. (Id. 193:14-18.)

18. Mr. Doherty testified that during the term of the Licensing Agreement, Peak built and sold 15 Port-a-Pour Series II batch plants and approximately seven Auxiliary Silos of various sizes, which were all branded with the Port-a-Pour Trademark. (Tr. 194:19-194:11.) He also testified that when Peak was learning to build Port-a-Pour’s products, Mr. Oberg worked with it almost every day for several months. (Id. 195:19-24.) Peak generated approximately $4-4.5 million of revenue from sales of Port-a-Pour’s products, and paid licensing fees of approximately $340,000.00. (Id. 195:12-15; Ex. 28.)

19. By July 2010, Peak had fallen behind in paying licensing fees and Port-a-Pour terminated the Licensing Agreement. (Exs. 28, 29.) Mr. Nelson, in his capacity as President of Peak, wrote a letter stating “I acknowledge your termination of the Licensing Agreement” and “we will no longer promote or build the Series II.” (Ex. 30.) As of the time the Agreement was terminated, Mr. Doherty testified that Peak owed Port-a-Pour $222,434 in licensing fees. (Tr. 196:23-197:2.) Defendants dispute this.

20. In connection with the termination of the Licensing Agreement, Port-a-Pour requested that Peak return the proprietary documents and information it had provided, as required by section 4.03 of the Licensing Agreement. (Exs. 3, 31; Tr. 198:3-14.) Mr. Doherty testified that Peak did not return all of Port-a-Pour’s proprietary documents after the Licensing Agreement’s termination. (Tr. 199:10-22.) Mr. Nelson admitted that he did not return Port-a-Pour’s drawings when the license terminated, and did not stop using the manufacturing drawings for the products Peak had made. (Id. 339:7-340:3.) However, he also testified that Peak was not using the drawings anymore because it had stopped building the Series II plant. (Id. 361:5-18.)

21. Also, after the Licensing Agreement was terminated, Mr. Nelson admitted that Peak redirected the URL—www. Port-a-Pour.com—to its website, which continued until the TRO hearing in June 2013. (Tr. 342:22-343:19.) Mr. Nelson testified that Peak had invested a lot of money in trying to promote Port-a-Pour, and it was trying to take advantage of that. (Id. 343:14-20.) Mr. Doherty testified that when the word “Port-a-Pour” is googled even as of the time of the hearing, Port-a-Pour’s websites come up as well as Peak’s website. This causes Port-a-Pour to possibly lose leads regarding people interested in Port-a-Pour products. (Id. 215:2-17.)

22. Port-a-Pour contends that Peak also continued to use its proprietary technology after the Licensing Agreement terminated. Exhibit 8 includes advertisements for Peak’s products that Mr. Oberg testified support this allegation. (Tr. 65:2-22.) Photographs 1 and 2 in Exhibit 8 are, according to Mr. Oberg, pictures and patent diagrams of Port-a-Pour’s admixture or chemical metering system on Peak’s website in the fall of 2013 under design build. (Id. 65:23-66:24.) Mr. Oberg testified that the photograph of the chemical metering system that Peak was offering on the website is identical to the patented chemical metering system developed and owned by Port-a-Pour (id. 66:25-68:4), and Port-a-Pour seeks to enjoin Peak from building or selling this system. The photographs of the chemical metering system were not, however, on the website when Mr. Oberg looked before his testimony on January 8, 2014. (Id. 68:5-12.)

23. Mr. Oberg also testified that Peak’s plant advertised in Exhibit 8 called the Peak Fusion (depicted in photograph 6 and which is a current offering of Peak) uses the Port-a-Pour proprietary design, including the chemical metering system, the blender, and the way the aggregate bins are mounted. (Tr. 75:6-76:20.) Further, he testified that the Peak-Matrix 500 and Peak-Matrix FF, depicted in photographs 7 and 9 of Exhibit 8, are Port-a-Pour’s Series II batch plants. (Id. 78:7-79:4; 81:1-82:3.) According to Mr. Oberg, the Peak-Matrix 500 and Peak-Matrix FF are similar in design and nature to an actual Port-a-Pour Series II batch plant advertised by Peak and depicted on page 11 of 24 of Exhibit 8. (Id. 83:3-17.) Mr. Oberg also stated that other products advertised in Exhibit 8, including the Peak-Magnum plant (photographs 12 and 13), use Port-a-Pour innovations/components and are Series II batch plants. (Id. 85:20-86:22; 87:10-88:3; 89:23-90:9.) He stated that Peak is essentially selling the Port-a-Pour Series II batch plant under a new name. (Id. 86:23-25.)

24. Mr. Oberg admitted, however, in connection with the photographs in Exhibit 8 that he had not actually inspected any of Peak’s products. He could not tell from some of the photographs whether the plants use the same type of components as the Series II, including the weight assembly load cell configuration, the blending feature, or other components. (Tr. 124:2-126:1;130:18—132:19; 133:25-134:4; 136:8-14; 137:16-138:18; 154:6-14.) He also admitted that some of Peak’s products have components that are not used in the Series II. (Id. 133:7-18; 137:9-139:3.) Mr. Nelson testified that there was only a limited amount of information that could be determined from the photographs; for example, a person could not tell what type of blending system is within the equipment or the shape/dimension of the bins. (Id. 274:3-6; 279:2-7.)

25. There was also testimony from Mr. Oberg that horizontal low-profile auxiliary or aggregate bins that Peak advertises as its own products and depicted in photographs 14-16 and 18-20 of Exhibit 8— including the Lo-Pro 1600 Silo, the Lo-Pro 1100 Silo and the Lo-Pro 6-11—are Port-a-Pour products or were developed by Port-a-Pour. (Tr. 90:10-14; 91:1-5; 93:10-15; 94:8-97:19.) Peak is advertising the product depicted in photograph 18, the Lo-Pro 1600 Silo, as its product when in fact it specifically says “Port-a-Pour” on the machine. (Id. 93:10-94:6; see also Ex. 8, p. 18.)

26. Also, Peak’s 2010 catalog offers a batch plant called the Port-a-Pour Series II, with the name appearing right on it. (Ex. 11, p. 3.) This appears to fall squarely within the terms of the parties’ Licensing Agreement. In addition, the 2010 catalog lists three products, the Lo-Pro 1100 horizontal silo, the Lo-Pro 1600 and the Lo-Pro 6-12, which are accompanied by a photograph of a horizontal silo branded with the “Port-a-Pour” Trademark. (Ex. 11; Tr. 206:25-207:10; 208:19-209:3.) Mr. Nelson admitted in his deposition that these horizontal silos had the name Port-a-Pour on them in the 2010 catalog because they were manufactured under the Licensing Agreement, and Peak offered them as its own products. (Id. 348:24-350:17.) He also testified, however, that Peak developed everything on its website except the Series II and the Lo-Pro 1600. (Id. 357:6-15.) Further, he admitted the Lo-Pro 1600 is similar in shape to the drawings Port-a-Pour presented, and when questioned as to whether it arose out of the Licensing Agreement, stated that depended on where the boundaries of the Licensing Agreement were drawn, i.e., whether it encompassed only the Series II as he thought or also the Auxiliary Silo. (Id. 368:19-369:13.)

27. Mr. Doherty testified that Exhibit 36 came from Peak’s website as of January 9, 2014, which states that Peak’s inventory is also on line at “Rock & Dirt”, a trade publication. (Tr. 200:13-201:5.) Mr. Do-herty testified that some of Peak’s products in Exhibit 36 infringe or misappropriate Port-a-Pour’s products and designs, including the products depicted on pages 6-17 as they are Port-a-Pour’s designs. (Id. 202:17-206:6; 208:21-211:15.) Indeed, he testified that the horizontal silo on page 12 of Exhibit 36 has the name Port>-a-Pour on it, and was still on the Rock & Dirt website as of the time of his testimony. (Id. 208:3-18.) Further, he stated that Peak’s Lo-Pro 6-11 silo on page 13 of Exhibit 36 is the same silo as the Lo-Pro 6-12 silo with Port-a-Pour’s name on it depicted at page 12 of Exhibit 11—Peak’s 2010 catalog.

28. When asked whether Mr. Doherty could tell from looking at the photographs in Exhibit 36 what the specific components of any of those pieces of equipment are, he testified that he could as to some of them—those that are marked with Port-a-Pour’s name on them as they used Port-a-Pour’s designs. (Tr. 237:14-238:2.) Mr. Doherty admitted that the newer Peak plants are not at issue in the case, unless they used the horizontal silo which he testified would be an infringement. (Id. 242:5-14.)

29. As to the Auxiliary Silo, Mr. Nelson testified that the initial Auxiliary Silo that Port-A-Pour designed was made from an eight foot diameter scrap piece of pipe and was abandoned by Peak because it looked like a “Rube Goldberg” contraption. (Tr. 276:19-277:11.) The next Auxiliary Silo in the record was referred to by Neil Oberg as the “auxcmtl200”, and the information and drawings regarding this silo were provided after the Licensing Agreement was entered into. (Id. 26:21-27:7.) The “auxcmtl200” was a 1200 cubic foot silo. According to Mr. Nelson, Peak opted to build a larger 1600 cubic foot silo, the Lo-Pro 1600.

30. Peak built its last Lo-Pro 1600 in 2008. It was built during the term of the Licensing Agreement, and Mr. Nelson admitted that it still has one of these silos for sale. (Tr. 269:8-14; 278:2-3.) Mr. Nelson testified that the Lo-Pro 1600 no longer has the words “Port-a-Pour” on it, as they were removed when the Licensing Agreement terminated. (Id. 305:6-306:22.) According to Mr. Nelson, Peak ceased building the Lo-Pro 1600 in 2008 for lack of customer demand and because the silo is too large. (Id. 345:16-17, see also 268:8-14; 368:21-25.) Peak opted instead to design the smaller Lo-Pro 1100 silo and to incorporate it into Peak’s modular system, described below. (Id. 368:13-20; 372:8-9.)

31. As to the design process of its products, Mr. Nelson testified that Peak’s building of the Series II plant during the term of the Licensing Agreement was a design-and-build process, and that the drawings and information provided by Port-a-Pour were unreliable. Accordingly, he testified that Peak made adjustments in building the Series II based on its research, including getting information from the products’ vendors and from competitors’ products. (Tr. 275:12-276:3.) Similarly, as to the Auxiliary Silo, Mr. Nelson stated that while Port-a-Pour provided drawings regarding how to build it and verbal information, Peak also got information about the design from component manufacturers and “decided ultimately what to do or not to do” in regard to its design. (Id. 278:4-11.) However, Mr. Nelson admitted in his deposition that during the time of the Licensing Agreement, its fabricated metal horizontal silos were built “more or less” the way Neil Oberg and Jerry Doherty of Port-a-Pour conceived it. (Id. 332:2-25.)

32. Mr. Nelson testified that 60% of the design of the Peak product lines came from Port-a-Pour, and 40% came from Peak or other sources. (Tr. 312:24-314:21.) Of the 60% that came from Port-a-Pour, Mr. Nelson testified that the information was generally available in the industry. According to Mr. Nelson, a mechanic could figure the information out, or the information could be determined from suppliers of the components, technical journals, or engineering knowledge on the Internet. (Id. 346:17-348:12.) Mr. Nelson also testified that there was nothing proprietary or confidential about horizontal silos in general or the aggregate conveyors from the Port-a-Pour drawings. (Id. 276:17-278:1; 285:19-286:5.)

33.Defendants also contend that during the term of the licensing agreement, Peak abandoned many aspects of Port-a-Pour’s products in favor of modifications that Peak created. Thus, as to the Series II, Mr. Nelson testified that Peak abandoned the rotary-lobed style blower that it had observed on previous plants built by Port-a-Pour, and redesigned the blower system to use two vortex regenerative blowers to reduce cost and increase reliability. (Tr. 281:3-18.) Because Port-a-Pour’s horizontal dust filter contained what Mr. Nelson characterized as “a lot of complexity for nothing,” he stated that Peak rejected Port-a-Pour’s filter design incorporating pneumatically actuated pul-ser valves in favor of direct electrically controlled valves, which Peak viewed as a more reliable system. (Id. 282: 23-283:8.) The electronic weighing system, which uses a load cell component sourced from a third party manufacturer, and the control panel were of Peak’s own design, according to Mr. Nelson. (Id. 260:8-15; 292:18-21; 287:14-17.) Also, Peak used its own software instead of Port-a-Pour’s software (id. 110:25-111:4), and Peak’s products use a different mixing/blending system than that designed by Port-a-Pour. (Id. 272:20—276:9.) According to Mr. Nelson, the Series II had a twin screw that blended materials on a rudimentary level. (Id. 271:14-20.) Peak no longer sells the Series II twin screw “blender” and never recommends it. (Id. 272:11-15.) Instead, Peak developed, recommends, and sells a paddle style blender that much more thoroughly mixes the input materials. (Id. 273:4-274:2; Ex. D-30.)

34. According to Mr. Nelson, the horizontal silo that Peak developed is also different than Port-a-Pour’s Auxiliary Silo as the bin uses a different angle, has a different load cell assembly, uses Peak’s, dust fans and the control panel was designed by Peak from scratch. The bin was redesigned so that the products could be transported on the highway without permits. (Tr. 280:2-14.) Mr. Nelson also testified that the trailer frame was designed by Peak and the landing jacks that transfer the weight to solid ground are Peak’s selections. (Id. 279:18-280:7; 292:1-20.)

35. In essence, then, Defendants contend that the Peak Max, the Peak Magnum, and anything other than the Series II and the Lo-Pro 1600 were products it developed independently. (Tr. 357:11-358:25.) They also assert that Peak made a decision based on market demand and customer needs to abandon the Series II plant and create a modular system. (Id. 263:7-18.) According to Mr. Nelson, Peak does not make the Series II anymore because “nobody wants to buy them... they are expensive ... they require oversized, over-width, overweight permits to move them around, which makes them awkward and expensive to move, they really can’t be considered a complete plant anymore because—because of the current need for a second powder and mix design.” (Id. 261:14-21.) Indeed, Mr. Nelson testified that Peak no longer considers itself a manufacturer of batch plants, but of custom and semi-custom bulk-material handling equipment. (Id. 256:17-19.) Peak puts together whatever parts the customer wants, the way the customer wants it put together. (Id. 256:25-257:1; 263:7-18.) Mr. Nelson contends that this “mix and match” system includes the Lo-Pro 1100, which is different in many important respects from the horizontal silo developed by Pori>-a-Pour, and is of Peak’s own design as discussed in the previous paragraph.

36. Mr. Nelson testified that a comparison of the drawings provided to Peak by Pori>-a-Pour and the information from the horizontal silos currently built by Peak shows that they are not the same, referring to photographs in Exhibit D-31. (Tr. 278:21-279:1; 279:8-13.) He also testified that a person cannot tell the differences from looking at the outside of the products in a photograph. (Id. 279:2-7.)

37. Defendants were asked the following questions in discovery and responded in pertinent part as follows:

2. Identify every Product you have offered for sale since June 12, 201S.

... every product offered for sale by Peak Innovations is listed on Peak’s website....

3. Identify every Product you currently offer for sale that consists of, uses or incorporates any Disputed Technology [including Port-a-Pour’s patented chemical metering system].

... a. Admix System. Products currently offered for sale which incorporate a chemical admixture system, include the Peak Max and Peak Magnum batch plants, which feature a chemical admixture system as an option ....

5. Identify every Communication you have had with any third party since June 12, 2013 related to any Product you offer for sale....

... C. On July 2, 2013 Peak made a proposal regarding a Peak Magnum plant to a potential customer. The chemical admixture is referenced as an option 1.11.2_

10. Identify any actions you have taken since June 12, 2013, to ensure that you do not infringe the Patents or the Trademark, violate the terms of the License Agreement, misappropriate Plaintiffs Trade Secrets, or otherwise infringe the rights of Plaintiff.

Peak has been planning to redesign the admixture delivery system for a long time due to the inferior quality of some components and a desire to redesign the admixture delivery system around new components. Since Peak has not sold an admixture system recently, nor built one for approximately two (2) years, Peak has not invested significant resources in redesigning the admixture system....

(Ex. 21.)

38.Also, Peak was asked in discovery (Interrogatory 6) to “Identify every Document that describes, relates to, or refers to any Product you have offered for sale since June 12, 2013, including, without limitation, catalogs, price lists, web pages, Facebook posts, product lists, brochures, emails..., advertisements or prospective advisements.” (Ex. 21; see also Tr. 213:13-21.) Defendants responded in pertinent part as follows: “Disclosed contemporaneously herewith are technical drawings and information related to the admixture system, horizontal dust filter and air slide assembly. All of the drawings were created by Peak. The knowledge required to create the drawings was obtained from Parts vendors, backwards engineering for [Port-a-Pour] products, Portable Batch Systems products, our own common sense and technical experience, from our employees (particularly Paul Romero who has extensive experience building and repairing batch plant components), from verbal information from [Port-a-Pour] employees (which was often conflicting) and from what we could glean from the jumbled and incomplete drawings from [Port-a-Pour].” (Ex. 21; Tr. 213:22-214:14.) Mr. Doherty testified that this response is not accurate, as Defendants did not backwards engineer the products. They got the information from Port-a-Pour. (Tr. 214:22-215:1.) Indeed, Mr. Nelson testified that he has not backwards engineered silos from competitor’s products. {Id. 333:1-10.)

39. Mr. Oberg testified that if Peak started all over from scratch to develop its own plant and did not use any drawings or information from Port-a-Pour, it would have no problem with that. It was the use of Port-a-Pour’s designs for their components and systems that is the problem. (Tr. 173:18-174:19.) Mr. Oberg also testified that Port-a-Pour spent $880,000 over 20 years developing its protected information. (Id. 181:9-15.) Consistent with this, Mr. Doherty testified that the designing of a brand-new batch plant from the ground up could take in the million dollar range. (Id. 217:23-218:2.) Notably, Peak independently developed one element to run the Port-a-Pour Series II; namely, the plant software. On this element alone, Peak spent $384,000. (Id. 344:6-15.)

40. The specific products or actions that the Court is asked to enjoin by Port-a-Pour are:

a. Horizontal silos that are derivatives of the Auxiliary Silo developed by Port-a-Pour, including, without limitation, Peak’s Lo-Pro 1100, the Lo-Pro 1600, the Lo-Pro 6-11, and the Peak-Matrix PB (referred to herein as “Peak Horizontal Silos”). Port-a-Pour contends that the Auxiliary Silos lie at the heart of the parties’ dispute, because Peak still builds and offers for sale horizontal silos including the Lo-Pro 1100, the Lo-Pro 1600 and the Lo-Pro 6-11, as well as other versions of the Auxiliary Silo, in violation of Port-a-Pour’s intellectual property rights. Further, it contends that Peak continues to offer these products online. (Exs. 8, 36.)

b. Port-a-Pour’s patented chemical metering system; and

c. Peak’s use of the “Port-a-Pour” Trademark and the continued registration of the Port-a-Pour URLs. Port>-a-Pour contends that Peak has used the trademark “Port-a-Pour” in advertisements continuously since the termination of the Licensing Agreement (Ex. 36).

41. Port-a-Pour also seeks an order for Peak to release its registration of the Port-a-Pour URLs.

42. Peak does not oppose an injunction against Peak’s use of Port-a-Pour’s Trademark so long as it is narrowly tailored to enjoin Peak from selling any product that uses the words “Port-a-Pour.” (Tr. 402:8-24.)

III. CONCLUSIONS OF LAW

A. Threshold Issues

1.This is a civil action for patent infringement arising under the patent laws of the United States, 35 U.S.C. § 111 et seq., for trademark infringement arising under the Lanham Trademark Act, 15 U.S.C. §§ 1051 et seq., and other related claims.

2. This court has jurisdiction over the subject matter of this action pursuant to 15 U.S.C. § 1221 and 28 U.S.C. §§ 1331 and 1338(a).

3. This court has supplemental jurisdiction over the non-federal claims pursuant to 28 U.S.C. § 1367. The court applies Colorado law to the state claims. See, e.g., Doubleclick Inc. v. Paikin, 402 F.Supp.2d 1251, 1257-60 (D.Colo.2005).

B. Preliminary Injunction Standard

4. “A preliminary injunction is an extraordinary remedy, the exception rather than the rule.” United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888 (10th Cir.1989). “A preliminary injunction may issue if the movant clearly shows: (1) a substantial likelihood of success on the merits; (2) irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm the preliminary injunction will cause the opposing party; and (4) the preliminary injunction is not adverse to the public interest.” Big O Tires, Inc. v. Bigfoot 4X4, Inc., 167 F.Supp.2d 1216, 1221 (D.Colo.2001) (citing SCFC ILC, Inc. v. Visa USA Inc., 936 F.2d 1096, 1098 (10th Cir.1991)).

5. According to the Tenth Circuit, “ ‘because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.’ ” Beltronics USA Inc. v. Midwest Inventory, 562 F.3d 1067, 1070 (10th Cir.2009) (quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003)). In other words, “[bjecause it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established.” Citizen Band Potawatomi Indian Tribe of Okla., 883 F.2d at 888-89.

6. “[T]he limited purpose of a preliminary injunction ‘is merely to preserve the relative positions of the parties until a trial on the merits can be held.’ ” Schrier v. Univ. of Colo., 427 F.8d 1253, 1258 (10th Cir.2005) (quotation omitted). As such, there are “ ‘three types of specifically disfavored preliminary injunctions ...: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.’ ” Id. (quoting 0 Centro Espirita Beneficíente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004)). A movant seeking a preliminary injunction that falls within one of these three categories must meet a heightened burden. 0 Centro, 389 F.3d at 975. I find that the injunction sought by Port-a-Pour is prohibitory in nature, and is not one of the disfavored types of injunctions.

7. In this case, three categories of illegal competition are alleged; namely, breach of contract/misappropriation of trade secrets (as to the Peak horizontal silos), patent infringement (as to the chemical metering system), and infringement of the trademark/misappropriation of the Port-a-Pour URLs. I note that Injunc-tive relief is explicitly authorized by the enabling statutes for each of the statutory claims Port-a-Pour asserts. See Colo. Rev.Stat. § 7-74-103 (providing for injunc-tive relief on such terms as may be just to remedy misappropriations of trade secrets); 35 U.S.C. § 283 (providing for injunction of patent infringement); 15 U.S.C. § 1114(b) (providing for injunction of trademark infringement); 15 U.S.C. § 1125(a) (providing for injunction of cy-bersquatting). I now turn to Port-a-Pour’s likelihood of success on the merits as to each category.

C. Likelihood of Success on the Merits

8. Port-a-Pour contends that its drawings, specifications and designs for the Auxiliary Silo are protected as proprietary information under the Licensing Agreement and the Confidentiality Agreements. In addition, Port>-a-Pour contends that its drawings, specifications and designs for the Auxiliary Silo are protected as trade secrets under the Colorado Uniform Trade Secrets Act, Colo.Rev.Stat. § 7-74-101, et seq. [“CUTSA”]. Port-a-Pour further contends that the Peak horizontal silos infringe these protected rights. I discuss these issues in turn.

Breach Of Contract Claim

9. The parties agree that the Port-a-Pour Series II batch plant falls within the Licensing Agreement and the Confidentiality and Nondisclosure Agreements. (Tr. 354:23-355:13.) Port-a-Pour contends that the Auxiliary Silo also falls within the terms of these Agreements as “plant support equipment”. Defendants dispute this. Thus, I must review the Agreements to determine whether the Auxiliary Silo is a covered product.

10. Interpretation of a contract is a question of law. Arapahoe Cnty. Water & Wastewater Pub. Improvement Disk v. HDR Eng’g, Inc., No. 08-cv-01788-WYD, 2011 WL 5025022, at *2 (D.Colo. Oct. 21, 2011) (citing Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 517 (Colo.App.2006)). “In construing [a contract], the primary obligation ‘is to effectuate the intent of the contracting parties according to the plain language and meaning of the contract.’ ” Id. (quoting Albright v. McDermond, 14 P.3d 318, 322 (Colo.2000)). “ ‘The overriding rules of contract interpretation require a court to apply the plain meaning of the words used, subject to interpretation from the context and circumstances of the transaction.’ ” Id. (quoting id.)

11. The Licensing Agreement includes Pori>-a-Pour’s trade secrets and other proprietary information relating to a portable batch plant for making concrete and “plant support equipment” as part of the definition of the “Products” or “Agreement Products” that Port-a-Pour owns. (Ex. 3, First Recital; see also id. ¶¶ 1.01— defining “Agreement Products” as “any product in which Port-a-Pour has a protected proprietary interest; 1.02—defining “Port-a-Pour’s “trade secrets” as “all that information, drawings, data, architectural specifications and the like”; 2.02—grant-ing license to Peak to make, use, sell and assemble Agreement Products; 4.01(b)— terminating Peak’s license rights upon termination of Licensing Agreement; 4.03— requiring Peak to return to Port-a-Pour “any and all drawings, specifications, models, brochures, documents and/or other property previously received from [Porh-a-Pour]”. Also, in the first and second recitals on page one of the Licensing Agreement, “Agreement Product” or “Products” are defined as “a portable batch plant for making concrete, and plant support equipment.” (Ex. 3).

12. The First and Second Confidentiality and Nondisclosure Agreements define Port-a-Pour’s “Protected Information” to include “all information which is proprietary to, and trade secrets of Port-a-Pour relating to a portable concrete batch plant and plant support equipment; specifically including any and all patents issued or pending to Port-a-Pour and all other trade secrets disclosed by Port-a-Pour to Recipient relating to the portable concrete batch plant and plant support equipment. (Ex. 4.)

13.Giving the language of the Agreements their plain meaning, I find that the drawings provided by Port-a-Pour to Peak related to the Series II and the Auxiliary Silo are protected under the Agreements as proprietary. I find that the Auxiliary Silo is encompassed within the Agreements based on the language therein that the Products at issue include “plant support equipment.” This interpretation—that the Auxiliary Silo is intended to be protected by the Agreements—is supported by several facts.

a. First, the Auxiliary Silo works exactly the same as the powder silo incorporated into the Series II batch plants. (Tr. 27:21-24; 59:23-60:5.) The technology is the same. (Id.) Thus, Port-a-Pour contends that they both have the identical low-profile design with the low-profile horizontal dust filter; both discharge their powder by the use of air slides that fluidize the powder; both determine the amount of powder dispensed by decumulative-weighing using integrate load cells; and both are integrated into the system controller, which governs the discharge of the powder identically into the concrete mix. (Id. 30:2-31:2.) Indeed, the only difference between the cement silo incorporated into the batch plants and the standalone Auxiliary Silo are the physical dimensions. (Id. 60:2-3.) Port-a-Pour contends that the built-in silo has to be smaller to fit on the same trailer with the rest of the components of a plant, whereas the Auxiliary Silo is larger since it sits on its own trailer.

b. Second, the intended purpose of the Auxiliary Silo is to be incorporated into a batch plant when two powders (cement and fly ash) are required in the concrete mix design. (Tr. 27:12-20; 28:4-10.) It is integrated control-wise into the plant, according to Mr. Oberg, and both products are needed to comply with that requirement. (Id. 28:10-21.) Once the Auxiliary Silo is connected to a batch plant, it essentially becomes part of the plant.

14. For these reasons, I find that the Auxiliary Silo is a product subject to the Licensing Agreement as plant support equipment. Indeed, it would lead to an absurd result to adopt Peak’s. assertion that the Auxiliary Silo is not protected by the Agreements, since the Auxiliary Silo is essentially the same design as the Series II batch plant silo which Peak admits is protected.

15. I also find the Auxiliary Silo and information and drawings related to same are covered under the Agreements’ broad language protecting “all information which is proprietary to, and trade secrets of Port-a-Pour relating to a portable concrete batch plant and plant support equipment -” (See Ex. 4, First Confidentiality and Nondisclosure Agreement at p. 1; see also Ex. 3, Licensing Agreement at Sections 1.01—defining “Agreement Products” as “any product in which Port-a-Pour has a protected proprietary interest, including without limitation, any product disclosed in trade secrets or other information disclosed to Peak, specifically including trade secrets and proprietary information contained in the Confidentiality and Non-Disclosure Agreement ....” and 1.02—defining “trade secrets” as “all that information, drawings, data, architectural specifications and the like (herein collectively called “information”) known from time to time by Licensor relevant to the manufacture, use, sale, and assembly of a mobile concrete batch plant, including all information, drawings, data, software, source code, design specifications, wiring diagrams, blending systems, and other specifications related to Agreement Products, which is contemplated to be transferred to Licensee by Licensor in order to enable Licensee to manufacture, use, sell, and assemble the mobile concrete batch plant.”

16.In so finding, I reject Defendants’ arguments that the drawings provided by Port-a-Pour to Peak regarding its Series II and Auxiliary Silo are not proprietary because (1) the functional aspects of concrete batch plants and horizontal silos are widely known in the marketplace; (2) there is nothing proprietary about the components of the products; or (3) the technology can be and has been reverse engineered by Mr. Nelson.

17. As to the first two arguments I note, among other things, that Peak relies on a scholarly paper and offerings from competitors to argue that the components of the Series II and the Auxiliary Silo, such as airslides, belt feeders, load cells, dust filters, chemical metering systems, and the like are widely used in the industry. Defendants also rely on material developed during discovery after the preliminary injunction hearing in support of its argument that the technology at issue was publically known and available before Port-a-Pour provided any information to Peak. (See “Notice of Supplemental Authority in Supp. of Defs.’ Opp. to Pl.’s Mot. Prelim. Inj. (ECF# 44) and Defs.’ [Proposed] Findings of Fact and Conclusions of Law (ECF# 73)”, ECF No. 113.) However, I find credible the testimony from Port-a-Pour’s representatives that the Series II batch plant and the Auxiliary Silo are unique in that Port-a-Pour made modifications to and innovations to the components based on several iterations that resulted in proprietary information. (Tr. 170:10-173:13.) This is the technology that it licensed to Peak. (Id. 173:14-17.) The fact that the components are widely used in the industry or are in the public domain is not dispositive, as “[i]t is widely accepted that a trade secret can exist in a combination of characteristics each of which, by itself, is in the public domain.” Catalyst & Chemical Servs., Inc. v. Global Ground Support, 350 F.Supp.2d 1, 9 (D.D.C.2004), aff'd, 173 Fed.Appx. 825 (Fed.Cir.2006).

18. The Sixth Circuit’s opinion in Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398 (6th Cir.2006) supports my finding in the previous paragraph. That court noted that “a new combination of known steps or processes can be entitled to trade secret protection.” Id. at 411. There, design drawings were properly considered trade secrets even though they contained “a mixture of secret information (e.g., dimensions, tolerances, and data-reference points) and non-secret information.” Id. The Sixth Circuit held that “[w]hen material such as design drawings or manuals are trade secrets based on a unique combination of both protected and unprotected material, a plaintiff should not be obligated to identify which components of the protected material is secret.” Id. (citing 3M v. Pribyl, 259 F.3d 587, 595-96 (7th Cir.2001) (holding that “[a] trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret”)). Similarly, Colorado law holds that “[n]ovelty and invention are not required for a trade secret. The protection is merely against breach of faith and reprehensible means of learning another’s secret.” Ovation Plumbing Inc. v. Furton, 33 P.3d 1221, 1224 (Colo.App.2001).

19. Peak’s third argument, that it is entitled to use Port-a-Pour’s designs because Mr. Nelson reverse-engineered Port-a-Pour’s designs, is also unavailing. While reverse engineering may sometimes be an appropriate way to discover a competitor’s trade secrets, Colorado law prohibits reverse engineering by a party who has a duty of nondisclosure or nonuse—as Peak assumed by entering into the Licensing Agreement and the Confidentiality Agreement. Mineral Deposits Ltd. v. Zigan, 773 P.2d 606, 608 (Colo.App.1988) (reverse engineering permissible, except where trade secret is divulged “under an express or implied restriction of nondisclosure or nonuse”) (citing Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974)). Moreover, Mr. Nelson testified that he has not backwards engineered silos from competitors’ products. (Id. 333:1-10.)

20. In further support of my finding, I note that the Licensing Agreement contains the following provision: “If some of the information transmitted by Licensor to Licensee is information previously or otherwise known to Licensee, this fact alone shall not derogate the trade secret and proprietary nature of the entire body of information to be transmitted under this Agreement from Licensor to Licensee.” (Ex. 3, ¶ 1.02.) This provision forecloses Peak’s arguments that Port-a-Pour’s Protected Information is not proprietary or “trade secrets,” since it explicitly agreed to the contrary. This also forecloses Defendants’ argument that the information provided by Port-a-Pour was not proprietary because it was provided prior to execution of the Agreements.

21. I also conclude that the information in the patents related to the chemical metering system are protected as proprietary.

22. Finally, I find that Peak breached the Licensing Agreement by continuing to sell products that were derived from the proprietary information provided to it by Port-a-Pour. I first note that during the active period of the Licensing Agreement, Peak manufactured and offered for sale three products that it advertised in its 2010 catalog: the Lo-Pro 1100, the Lo-Pro 1600, and the Lo-Pro 6-12. (See Ex. 11.) Each of these products was branded with the “Port-a-Pour” Trademark. The evidence showed that these products or some derivative of them, ie., the Lo-Pro 6-11, were still being offered as of the time of the hearing on the preliminary injunction motion. (Ex. 36.) While the other two horizontal silos Peak offered no longer contained the name Port-a-Pour on them, Peak was still offering the Lo-Pro 1600 horizontal silo with the name Port-a-Pour on it (Ex. 36, p. 12), and it was still on the Rock & Dirt website as of the time of Mr. Doherty’s testimony. (Tr. 208:3-18.) However, at the hearing oh the preliminary injunction motion, I authorized the removal of this photograph by Peak. (Tr. 409:19-410:15.) The affidavit of Mark Nelson filed with the Court on March 6, 2014, confirms its removal from Peak’s website and from all advertisements. (ECF No. 73-2.)

23. Defendants assert that an injunction is not appropriate because Peak is no longer selling products with the Port>a-Pour name on it. I agree that “[t]he purpose of a preliminary injunction hearing is not to remedy past harm but to protect plaintiffs from irreparably injury that will surely result without their issuance.” Schrier, 427 F.3d at 1267. However, I find that Port-a-Pour met its burden for purposes of the preliminary injunction motion of showing that at least two horizontal silos still sold by Peak violate the Licensing Agreement by using Port-a-Pour’s proprietary information. Thus, there is evidence that both the Lo-Pro 6-11 and the Lo-Pro 1600 are still being sold, although Peak has removed the Port-a-Pour name from them. I find for purposes of Plaintiff’s motion that these products are derived, at least in part, from the Port-a-Pour proprietary information/drawings provided to Peak, and that the continued sale of these products violates the Licensing Agreement.

24. Peak admitted, through Mr. Nelson, that the Lo-Pro 6-12 (which I find to be essentially the same as the Lo-Pro 6-11) and the Lo-Pro 1600 silo were developed during the term of the Licensing Agreement. Indeed, Mr. Nelson admitted in his deposition offered at the preliminary injunction hearing that the horizontal silos offered in the 2010 catalog (which include the Lo-Pro 6-12 and the Lo-Pro 1600) had the name Port>-a-Pour on them in the 2010 catalog because they were manufactured under the Licensing Agreement and Peak offered them as its own products. (Tr. 348:24-350:17.) Mr. Nelson also admitted that Peak did not return Port>-a-Pour’s drawings when the license terminated, and did not stop using the manufacturing drawings for the products it had developed during the licensing period. (Id. 339:7-340:3.)

25. Further, Mr. Nelson admits that 60% of the design of the Peak product lines that were designed during the Licensing Agreement—which would include the Lo-Pro 1600 and the Lo-Pro 6-11 or 6-12—came from Port-a-Pour, and 40% was re-designed or re-engineered by Peak. (Tr. 314:9-21.) He also admitted in his deposition offered at the hearing that during the time of the Licensing Agreement, Peak’s fabricated metal horizontal silos were built “more or less” the way Neil Oberg and Jerry Doherty of Port-a-Pour conceived them. (Id. 332:2-25.) These admissions are dispositive of Peak’s contradictory assertion that Peak did not receive, or alternatively, did not use any of Port>-a-Pour’s design in any of its horizontal silos.

26. Further as to the Lo-Pro 1600, Mr. Nelson testified that Peak developed everything on its website except the Series II and the Lo-Pro 1600. (Tr. 357:6-15.) Thus, he essentially admitted that Peak did not develop this product. Further, he admitted the Lo-Pro 1600 is similar in shape to the drawings Port-a-Pour presented, and when questioned as to whether it arose out of the Licensing Agreement, stated that depended on where the boundaries of the Licensing Agreement were drawn, i.e., whether it encompassed only the Series II as he thought or also the Auxiliary Silo. (Id. 368:19-369:13.) Since I found previously that the License Agreement does encompass the Auxiliary Silo, Mr. Nelson’s testimony supports the finding that the Lo-Pro 1600 arose out of and was developed under that Agreement.

27. I also note Mr. Nelson admitted that Port-a-Pour’s Auxiliary Silo and Peak’s horizontal silos are functionally identical. (Tr. 330:23-332:25; 333:14-334:9.) Both products have the same features and functionalities: a low-profile design with a low-profile horizontal dust filter, making the silo capable of being transported in one piece by truck; both discharge their powder by the use of air slides that fluidize the powder; and both measure the amount of powder dispensed by decumulative weighing using integrate load cells. While Mr. Nelson pointed to differences in regard to its horizontal silos as compared to Port-a-Pour’s, I find the differences immaterial as they relate to the Lo-Pro 6-11 or the Lo-Pro 1600 because I find they were built using Port>-a-Pour’s proprietary information. Further, while Defendants point to the fact that Port-a-Pour did not examine Peak’s products and can only glean limited information from the photographs, I find this immaterial based on the evidence adduced at the hearing, including the testimony of Mr. Nelson discussed above.

28.Based on the foregoing, I find that Port-a-Pour has shown for purposes of the preliminary injunction motion that Peak’s Lo-Pro 6-11 and 6-12 and the Lo-Pro 1600 horizontal silos are derived in material part on Port-a-Pour’s protected information in violation of the L