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PetEdge, Inc. v. Fortress Secure Solutions, LLC

United States District Court, D. Massachusetts

February 2, 2016

PETEDGE, INC., Plaintiff,
v.
FORTRESS SECURE SOLUTIONS, LLC, Defendant.

MEMORANDUM AND ORDER ON MOTION TO STRIKE AFFIRMATIVE DEFENSES

F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

This is an action for patent and trademark infringement. Plaintiff PetEdge, Inc., is a Massachusetts-based pet products manufacturer. PetEdge owns U.S. Patent No. 7, 621, 236 (“the ’236 patent”) for a set of folding steps that convert into a ramp for pets to climb on to a bed. It markets the steps under the PET STUDIO family of marks, which includes U.S. Trademark Reg. No. 4, 759, 263.

Defendant Fortress Secure Solutions, LLC is a Washington limited liability company that sells pet products (and security systems) through national online retailers. The complaint alleges that Fortress produces and sells a product that infringes on the ’236 patent and the PET STUDIO mark.

PetEdge has filed a motion pursuant to Fed.R.Civ.P. 12(f) to strike certain affirmative defenses that Fortress pleaded in its answer. PetEdge contends that the defenses are insufficient, immaterial, and otherwise improper. Fortress contends that the defenses are properly pleaded under Rule 12(f) and that PetEdge’s motion is premature because neither party has conducted discovery.

For the following reasons, the motion will be granted in part and denied in part.

I. Background

On June 1, 2015, PetEdge filed suit against Fortress. The complaint alleges (1) patent infringement in violation of 35 U.S.C. § 271(a)-(c); (2) Lanham Act trademark infringement in violation of 15 U.S.C. § 1114(1); (3) Lanham Act unfair competition and false designation of origin in violation of 15 U.S.C. § 1125(a); (4) common-law trademark infringement; (5) common-law unfair competition; and (6) unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A. (Compl. ¶¶ 25-62).

On June 29, 2015, Fortress moved to dismiss the complaint for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). The Court denied that motion on November 17, 2015. On December 1, 2015, Fortress filed an answer that included, among other things, 24 defenses. On December 21, 2015, PetEdge moved to strike the following 14 defenses:

2. Plaintiff has failed to join indispensable parties.
3. Plaintiff’s claims are barred to the extent that Plaintiff lacks standing to assert claims for the claimed trademark.
4. Plaintiff’s claims are barred to the extent that Plaintiff has forfeited or abandoned the trademark alleged in the Complaint.
5. Plaintiff’s claims are barred in whole or in part by license, consent, acquiescence and/or waiver.
6. Plaintiff’s claims are bared to the extent any persons, based on whose behavior Plaintiff seeks to hold Defendant ...

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