Atlas Biologicals, Inc. v. Kutrubes et al

Filing 46

PRELIMINARY INJUNCTION. By Judge Christine M. Arguello on 03/25/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00355-CMA-KMT
ATLAS BIOLOGICALS, INC., a Colorado
Corporation
Plaintiff,
v.
THOMAS JAMES KUTRUBES, an
individual; PEAK SERUM, INC., a
Colorado corporation; and PEAK
SERUM, LLC, a dissolved Colorado
limited liability company
Defendants.
PRELIMINARY INJUNCTION

This matter is before the Court on Atlas Biological Inc.’s (“Atlas’”) Ex Parte
Motion for Preliminary Injunction. (Doc. # 5.)
The Court entered a TRO on March 3, 2015. (Doc. # 17.) This matter
proceeded to an evidentiary hearing on March 23, 2015, and the Court has
considered the evidence submitted at that hearing, along with the affidavits, exhibits 1
and briefing of the parties. (See Doc. ## 5, 27, 35.) At that hearing, the Court ruled
from the bench that, in the absence of a non-solicitation and non-compete
1

The following exhibit numbers were entered into evidence at the March 23, 2015 hearing: 1,
2, 7, 18, 20, 22, 25, 29, 32, 33, 34, 40, 49, 53, 54, 56, 58, 59, 60, 61, 62, 63, 64, 66, 71, 101,
103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 120, 121, 130, 131, 134,
140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 154, 155.

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agreement, the Court did not have authority to enjoin Defendants from contacting all
of the customers in Atlas’ customer database. (Doc. # 43.)
Accordingly, the Court ORDERS that Plaintiff’s preliminary injunction is DENIED
in part as to Defendants’ contact of Plaintiff’s customers. It is also GRANTED in part,
as follows:
Pursuant to the March 6, 2015, stipulation of the parties, Defendants,
Defendants’ officers, agents, servants, employees, and attorneys, and other persons
who are in active concert or participation with the foregoing are enjoined from:
a) Using the marks EquaFETAL, FETAL+PLUS, ATLAS, or ATLAS
BIOLOGICALS in connection with Defendants’ goods or services;
b) Using any trademark, trade dress, service mark, name, logo, design or
source designation of any kind on or in connection with Defendant’s goods
or services that is a copy, reproduction, colorable imitation, or simulation of,
or confusingly similar to the trademarks, trade dress, service marks, names
or logos of Atlas Biologicals, Inc.
c) Using any trademark, trade dress, service mark, logo, design or source
designation of any kind on or in connection with Defendant’s goods or
services that is likely to cause confusion, mistake, deception, or public
misunderstanding that such goods or services are produced or provided by
Atlas Biologicals, Inc., are sponsored or authorized by Atlas Biologicals,
Inc., or are in any way connected with, controlled by, or related to Atlas
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Biologicals, Inc.;
d) Using and further disclosing the proprietary information and trade secrets of
Atlas Biologicals to produce bovine or equine serum based products,
including EquaFETAL or blended or proprietary products based on Atlas’
proprietary information and trade secrets;
e) Producing products containing EquaFETAL or EquaFETAL in combination
with other products; and
f) Deleting, destroying, erasing or otherwise making unavailable for further
proceedings in this matter any Atlas business information, trade secrets,
proprietary information, tangible or intangible property, and any information
belonging to or relating to any Atlas customer or vendor which information
was improperly obtained by Kutrubes or Peak Serum during Kutrubes’
employment with Atlas.
(Doc. # 26.)
It is FURTHER ORDERED that pursuant to the stipulation reached at the
preliminary injunction hearing on March 23, 2015, Peak Serum and Kutrubes shall
allow Atlas’ expert information technology consultant, Dan Silva, to obtain forensic
copies of all drives and media no later than April 3, 2015. Additionally, Peak Serum
and Kutrubes shall return to Atlas Biologicals all information, documents, and things
that Kutrubes or Peak Serum took from Atlas Biologicals by April 3, 2015 and delete

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so as to render unrecoverable, all Atlas materials from its electronic storage media 2
immediately following preservation of evidence by obtaining forensic copies; the
forensic copies shall remain in the possession of Atlas’ counsel and shall not be
viewed until the Fed. R. Civ. P. 26(f) conference occurs and terms for handling ESI
are stipulated to or ordered. Additionally, it is
FURTHER ORDERED that the parties shall enter into a blanket protective order
that includes provision specifying that all exhibits in this matter will be restricted at
“Level 1” under the local rules, and Atlas’ customer database would be restricted to
“attorneys’ eyes only.” The foregoing stipulation shall be reduced to a memorialized,
signed writing by the parties within ten days of the date of this order, and a copy filed
with the court. It is
FURTHER ORDERED that Plaintiff’s bond of $1000, posted as security for the
TRO (Doc. # 25), is hereby applied to this injunction.
DATED: March 25, 2015
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

2

Kutrubes and Peak Serum have represented there are two such drives, one on a laptop and
one on a desktop computer.

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