Motion to Test Sufficiency of Answers and Strike Affirmative Defenses
IN THE UNITED STATES PATENT AND TRADEMARK 
OFFICE BEFORE THE TRADEMARK TRIAL 
AND APPEAL BOARD
			
[Insert Name]	)		
	)		
Opposer,	)		
	)		
v.	)		Opposition No.:	
	)		
[Insert Name]	)		
	)		
Applicant.	)		
Commissioner for Trademarks
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
OPPOSER’S MOTION TO STRIKE CERTAIN OF 
APPLICANT’S AFFIRMATIVE DEFENSES AND 
MEMORANDUM IN SUPPORT
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure and Sections 506.01 and 506.02 of the Trademark Trial and Appeals Board Manual of Procedure (“TTABMP”), Opposer [Insert Name], Inc. (hereinafter “Opposer”) respectfully requests that the Trademark Trial and Appeal Board (the “Board”) enter an order striking [Applicant [Insert Name], Inc.’s (hereinafter “Applicant”) first seven (7) affirmative defenses (the “Affirmative Defenses”) in Applicant’s Answer to the Notice of Opposition (the “Answer”).
PRELIMINARY STATEMENT
For the reasons discussed below, Opposer submits that Applicant’s Affirmative Defenses are insufficiently pleaded under Fed. R. Civ. P. 8(b) and TTAB Rule 311.02 (b). These rules require Applicant to identify the basis for its Affirmative Defenses in sufficient detail so as to provide both Opposer and this Board with fair notice of the predicate for those defenses. The Affirmative Defenses, however, are bald and conclusory assertions that do not provide Opposer with fair notice of the basis for the claimed defenses, and do not plead the elements necessary to establish the Affirmative Defenses. Accordingly, Opposer respectfully requests that Applicant’s Affirmative Defenses be stricken.
ARGUMENT
The Affirmative Defenses Are Insufficiently Pleaded
Applicant fails to plead any facts in support of its Affirmative Defenses. Rule 8(b) requires that any defense to a claim must be stated in short and plain terms. Fed R. Civ. P. 8(b). Similarly, under TTAB Rule 311.02(b), “[t]he elements of a defense should be stated simply, concisely, and directly” and “should include enough detail to give the plaintiff fair notice of the basis for the defense.” Bald and conclusory allegations are insufficient under that standard, in that they neither give fair notice of the basis for a claim nor set forth sufficient facts that, if proven, support the claim. TTAB Rule 311.02(b) (citing McDonnell Douglas Corporation v. National Data Corporation, 228 U.S.P.Q. 45 (TTAB 1985)). The case law is clear that even under Rule 8(a)’s notice pleading standard, affirmative defenses, including “(l) aches, waiver, estoppel, and unclean hands…must be plead with the specific elements required to establish the defense” or else be stricken. Software Publishers. Ass ‘n v. Scott & Scott, LLP, 2007 U.S. Dist. LEXIS 59814 (N.D. Tex. 2007).
Indeed, in Reis Robotics USA, Inc. v. Concept Industries, Inc., 462 F. Supp. 2d. 897 (N.D. Ill. 2006), the court rejected as insufficiently pleaded affirmative defenses materially identical to the affirmative defenses Applicant purports to raise here. In that case, defendant, like Applicant here, alleged in its answer that plaintiff s “claims are barred or limited by laches, waiver, estoppel, unclean hands, or similar legal or equitable doctrines.” [Cite] at 907. In striking those defenses, the court held that “[m]erely stringing together a long list of legal defenses is insufficient to satisfy Rule 8(a).” [Cite] The court reasoned that “[i]t is unacceptable for a party’s attorney simply to mouth [affirmative defenses] in formula-like fashion (‘laches,’ ‘estoppel,’ ‘statute of limitations,’ or what have you), for that does not do the job of apprising opposing counsel and this Court of the predicate for the claimed defense-which after all is the goal of the pleading.” [Cite] (internal citations omitted).
Such unacceptable “boilerplate” pleading is precisely what Applicant uses in this case, to wit:
•	Applicant’s first affirmative defense states: “Opposer has failed to state a claim upon which relief can be granted.”
•	Applicant’s second affirmative defense states: “Opposer is barred, in whole or in part, from relief by the Doctrine of Waiver.”
•	Applicant’s third affirmative defense states: “Opposer’s claims are precluded by the Doctrine of Estoppel.”
•	Applicant’s fourth affirmative defense states: “Opposer’s claims are precluded because the plaintiff’s mark has been abandoned.”
•	Applicant’s fifth affirmative defense states: “Opposer has failed to adequately maintain, police or enforce any trademark or proprietary rights it may once have had in its alleged pleaded mark(s).”
•	Applicant’s sixth affirmative defense states: “Opposer’s alleged use of ‘[Insert Name]’ does not constitute trademark use.”
•	Applicant’s seventh affirmative defense states: “Applicant hereby gives notice that it may rely on any other defenses that may become available or appear proper during discovery, and hereby reserves its right to amend this Answer to assert any such defenses.”
None of these Affirmative Defenses meet the requirement of either Rule 8(b) or TTAB Rule 31 1.02 since they are each mere conclusory, “boilerplate” affirmative defense, without any consideration of the actual applicability of the defense to the allegations in this case and without any identification of the factual basis for the defense. As a result, both Opposer and this Board can only speculate as to the predicates for those defenses-hardly the “fair notice” required under the rules. As such, the Affirmative Defenses should be stricken as insufficiently pled.
CONCLUSION
Because Applicant’s Affirmative Defenses are inadequately pled, Opposer respectfully requests that he Board Strike those defenses. Accordingly, Opposer respectfully requests that the Board: (I) grant this Motion; (2) strike Applicant’s Affirmative Defenses; and (3) grant such other and further relief as the Board deems appropriate.
Dated: [Insert Date]		
	Respectfully submitted,	
	_______________________	
	[Attorney Name]	
	[Firm Name]	
	[Firm Address]	
	[Telephone No.]	
	[E-Mail Address]	
	Attorney for Opposer	
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing pleading was sent via First Class Mail and E-Mail this [Insert Date] to [Insert Name and Address of Opposing Counsel].
	___________________________	
	Name:	
	Attorney for [Insert]