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  • Case Finding: Had applicant pleaded an affirmative defense of priority through tacking, opposer could not have argued unfair surprise.
    • The H.D. Lee Company, Inc. v. Maidenform, Inc., Opposition No. 91168309 (TTAB 2008)
      • As for opposer, it objected to applicant's evidence regarding the ONE FABULOUS FIT mark that applicant tried to tack onto the involved ONE FAB FIT mark. This objection, however, is not so much an objection rooted in failure to provide information about the former mark during discovery as it is an objection to inadequate pleading. Had applicant pleaded an affirmative defense of priority through tacking, opposer could not have argued unfair surprise.
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