311.02(d)    Other Affirmative Pleadings - Amplifying Denials

An answer may include affirmative assertions that, although they may not rise to the level of an affirmative defense, nevertheless state the reasons for, and thus amplify, the defendant’s denial of one or more of the allegations in the complaint. These amplifications of denials, whether referred to as "affirmative defenses," "avoidances," "affirmative pleadings," or "arguments," are permitted by the Board because they serve to give the plaintiff fuller notice of the position which the defendant plans to take in defense of its right to registration. [ Note 1.]

NOTES:

 1.   See Mars Generation, Inc. v. Carson, 2021 USPQ2d 1057, at *3-4 (TTAB 2021) (amplifications of denials are not true affirmative defenses); Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134, 1136 (TTAB 2009) (applicant’s "affirmative defenses" for the most part amplified its denials of opposer’s allegations regarding likelihood of confusion); Order of Sons of Italy in America v. Profumi Fratelli Nostra AG, 36 USPQ2d 1221, 1223 (TTAB 1995) (motion to strike third affirmative defense denied because it was an amplification of a denial, giving fuller notice of the claim); Humana Inc. v. Humanomics Inc., 3 USPQ2d 1696, 1697 n.5 (TTAB 1987) (allegations under heading "affirmative defenses" were in the nature of arguments in support of denial of claim rather than true affirmative defenses and were treated as such); Maytag Co. v. Luskin’s, Inc., 228 USPQ 747, 747 n.3 (TTAB 1986) (same); Textron, Inc. v. Gillette Co., 180 USPQ 152, 153 (TTAB 1973) (denying motion to strike paragraph in answer which amplified applicant’s denial and provided opposer with fuller notice of applicant’s defense); McCormick & Co. v. Hygrade Food Products Corp., 124 USPQ 16, 17 (TTAB 1959) (allegation that registered mark is weak does not constitute a collateral attack on validity of opposer’s registrations). Cf. Harsco Corp. v. Electrical Sciences Inc., 9 USPQ2d 1570, 1572 (TTAB 1988) (denying motion to strike portions of petition to cancel that were not prejudicial and gave respondent more complete notice of petitioner’s claim).