Plaintiff FUTUREDONTICS, INC.'s Motion for Preliminary Injunction came on regularly for hearing before this Court on November 24, 1997. The Court has reviewed the materials submitted by the parties, argument of counsel, and the case file. Because Plaintiff has failed to meet its burden, it is hereby ORDERED that Plaintiff's motion is DENIED.

With respect to Plaintiff's copyright infringement claim, the Court specifically finds as follows:

I. Probable Success on the Merits

Plaintiff has not offered sufficient evidence that Defendant APPLIED ANAGRAMICS, INC.'s ("AAI") framed link creates a derivative work. The Ninth Circuit's decision in Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1343 (9th Cir. 1988), does not indicate a probability of success on the merits in the instant case. In Mirage, the Ninth Circuit held that transferring and affixing art images with glue to ceramic tiles constituted "the creation of a derivative work in violation of the copyright laws." Id. at 1343-44; see also Munoz v. Albuquerque A.R.T. Co., 829 F. Supp. 309 (D. Alaska 1933) (reaching the same holding based on the same facts) aff'd, 38 F.3d 1218 (9th Cir. 1994).

Mirage is distinguishable from the present case where AAI placed an electronic frame or border on Plaintiff's web page. See, e.g., Louis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 968 (9th Cir. 1992) (noting that the decision in Mirage would have been different had the plaintiff "distributed lenses that merely enabled users to view several art works simultaneously" and finding that a product that "enhances the audiovisual displays" of a video game cartridge does not constitute derivative works).

II. Irreparable Injury

Because Plaintiff has failed to demonstrate a probability of success on the merits, no presumption of irreparable injury arises. See Cadence Design Sys., Inc. v. Avant! Corp., 125 F.3d 824, 826 (9th Cir. 1997) (recognizing that "a presumption of irreparable injury arises if the plaintiff is able to show a likelihood of success on the merits of its copyright infringement claim"). Nevertheless, Plaintiff offers the declarations of Futuredontics' Chief Executive Officer Michael Apstein and Futuredontics' Communications Manager Diane Lindley as evidence of irreparable injury relating to its copyright infringement claim.

Apstein states "Futuredontics has been harmed" because the " 'frame' interferes with the message Futuredontics is attempting to convey to its customers and prospective member dentists." Lindley states that "reproduction of the Futuredontics site on the Frame Page limits the effectiveness of the site because viewers cannot access all of the Futuredontics web pages in an efficient manner." Lindley also states that the framed liked distorts the appearance of the Futuredontics web site. But see David Smith Decl. Para. 19 (" [V]iewers or users have to scroll no more when viewing Futuredontics' web site through the AAI frame than they do when viewing such site directly in order to see most of the content."). Plaintiff's evidence fails to establish irreparable injury sufficient to warrant a preliminary injunction.

III. Balance of Hardships

Even if Plaintiff could establish serious questions going to the merits on its copyright infringement claim, the Court finds that Plaintiff has failed to establish that the "balance of hardships tips sharply in its favor." In this case, neither party has offered significant evidence of injury. As noted above, Plaintiff's evidence fails to establish irreparable injury. It similarly fails to establish that the balance of hardships tips sharply in its favor.

For all these reasons, the Court hereby DENIES Plaintiff's motion for a preliminary injunction on both its copyright infringement and Lanham Act claims.