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  • Fed. R. Civ. P. 13(f) allows a party to move for leave to assert a counterclaim if the counterclaim was originally omitted through oversight, inadvertence, or excusable neglect, or when justice requires.
    • Dating DNA, LLC v. Imagini Holdings, Ltd., Opposition No. 91185884 and 91191912 (TTAB 2010)
      • Additionally, Fed. R. Civ. P. 13(f) addresses counterclaims and allows a party to move for leave to assert a counterclaim if the counterclaim was originally omitted "through oversight, inadvertence, or excusable neglect, or when justice requires."
  • Under Fed. R. Civ. P. 15(a), the TTAB liberally grants leave to amend pleadings at any stage of the proceeding when justice requires, unless entry of the proposed amendment would violate settled law or be prejudicial to the rights of the adverse party.
    • Dating DNA, LLC v. Imagini Holdings, Ltd., Opposition No. 91185884 and 91191912 (TTAB 2010)
      • Consistent with Fed. R. Civ. P. 15(a), the Board liberally grants leave to amend pleadings at any stage of the proceeding when justice requires, unless entry of the proposed amendment would violate settled law or be prejudicial to the rights of the adverse party. See Commodore Electronics Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503 (TTAB 1993).
  • In deciding whether to grant leave to add an omitted counterclaim under Rule 13(f), the same standards governing Rule 15(a) apply.
    • Dating DNA, LLC v. Imagini Holdings, Ltd., Opposition No. 91185884 and 91191912 (TTAB 2010)
      • In deciding whether to grant leave to add an omitted counterclaim under Rule 13(f), the same standards governing Rule 15(a), as set forth above, apply. See e.g., See's Candy Shops Inc. v. Campbell Soup Co. (12 USPQ2d 1395, 1396 (TTAB 1989) (reading Rule 13(f) in conjunction with Rule 15(a)).
  • Such claims must be pleaded promptly after the grounds are learned if not known at the time the answer is filed.
    • Dating DNA, LLC v. Imagini Holdings, Ltd., Opposition No. 91185884 and 91191912 (TTAB 2010)
      • Such claims must be pleaded promptly after the grounds are learned if not known at the time the answer is filed. See TBMP § 313.04 (2d ed. rev. 2004) and cases cited therein.
  • Trademark Rule 2.106(b)(2)(i) governs counterclaims for cancellation of pleaded registrations in TTAB opposition proceedings.
    • Dating DNA, LLC v. Imagini Holdings, Ltd., Opposition No. 91185884 and 91191912 (TTAB 2010)
      • Trademark Rule 2.106(b)(2)(i) governs counterclaims for cancellation of pleaded registrations in Board opposition proceedings.
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