Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 25-cv-20713-BLOOM/Elfenbein

EXOTROPIN, LLC,

Plaintiff,

v.

DP DERM, LLC, and BIOSOFT

(AUSTRALIA) PTY LTD,

Defendants.

_________________________/

OMNIBUS ORDER ON MOTIONS TO STRIKE AFFIRMATIVE DEFENSES

THIS CAUSE is before the Court upon Plaintiff Extropin, LLC’s (“Extropin”) Motion to

Strike Defendant DP Derm LLC’s (“DP Derm”) Affirmative Defenses, ECF No. [63], Plaintiff’s

Motion to Strike Defendant Biosoft (Australia) PTY LTD’s (“Biosoft”) Affirmative Defenses,

ECF No. [64], and Plaintiff’s Motion to Strike Defendant Dermapenworld FZ LLE’s Affirmative

Defenses, ECF No. [71]. Each Defendant filed a Response in Opposition. ECF Nos. [66], [67],

[75]. Extropin filed Replies in Support. ECF Nos. [69], [70], [78]. The Court has reviewed the

Motions, the supporting and opposing submissions, the record, and is otherwise fully advised. For

the reasons that follow, Extropin’s Motions are granted in part and denied in part

I. BACKGROUND

Extropin filed the operative complaint in this action, the First Amended Complaint, ECF No.

[15], on March 25, 2025. Thereafter, Defendants filed their respective Answers and Affirmative

Defenses. ECF Nos. [60], [61], [68]. Extropin now moves to strike Defendants’ Affirmative

Defenses, arguing the Defendants fell short of their pleading requirements, offering only vague

bare-bone assertions and a “hodge-podge” of legal conclusions, devoid of any facts. ECF Nos.

[63], [64], [71]. Defendants respond that each Affirmative Defense provides fair notice under the

Rule 8 pleading requirements, and any labeling or specificity issues can be cured through

amendments. ECF Nos. [66], [67], [75].

II. LEGAL STANDARD

A. Motion to Strike Affirmative Defenses

Rule 12(f) of the Federal Rules of Civil Procedure provides that “the court may strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f). However, striking affirmative defenses has long been disfavored, and “[a]

motion to strike will usually be denied unless the allegations have no possible relation to the

controversy and may cause prejudice to one of the parties.” United States Commodity Futures

Trading Commission v. Mintco LLC, 2016 WL 3944101, at *2 (S.D. Fla. 2016) (internal quotation

omitted).

Courts are split regarding the standard for pleading affirmative defenses. The Eleventh Circuit

has not yet settled this split nor established one appropriate standard for affirmative defenses. See,

e.g., Mad Room, LLC v. City of Miami, 2024 WL 2776173, at *1 (S.D. Fla. 2024). Some courts

follow the Rule 8(a) standard, according to which a pleading must provide “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555; see Iqbal, 556 U.S. at 678; Fed. R. Civ. P. 8(a). Other courts, including this Court,

have applied a less stringent standard derived from the language of Rule 8(b) and 8(c), which only

requires affirmative defenses to “provide fair notice of the nature of the defense and the grounds

upon which it rests.” Northrop and Johnson Holding Company, Inc. v. Leahy, 2017 WL 5632041,

at *3 (S.D. Fla. 2017) (internal quotation marks and citation omitted); see also Fed. R. Civ. P. 8(b)-

(c).

Under the lower pleading standard, “an affirmative defense must be stricken when the defense

is comprised of no more than bare-bones, conclusory allegations or is insufficient as a matter of

law.” Northrop at *3 (internal quotation marks and citation omitted). “An affirmative defense is

insufficient as a matter of law where: (1) in the face of the pleadings, it is patently frivolous, or (2)

it is clearly invalid as a matter of law.” Id. (citations omitted). In evaluating a motion to strike

affirmative defenses, the Court does not “consider the merits of any affirmative defense because

the [c]ourt accepts all well-pled facts as true and only evaluates the legal sufficiency of an

affirmative defense.’” Mad Room, 2024 WL 2776173, at *2.

III. DISCUSSION

A. Motion to Strike DP Derm’s Affirmative Defenses

i. DP Derm’s First Affirmative Defense

DP Derm’s First Affirmative Defense asserts that “The Complaint fails to state a claim upon

which relief can be granted.” ECF No. [60] at 8. Extropin contends that it improperly asserts a

challenge to the sufficiency of the Complaint, which is not a true affirmative defense, and pleading

defects should be raised in a Rule 12(b)(6) motion to dismiss. Id. Moreover, DP Derm filed its

motion to dismiss and failed to raise any pleading defects. DP Derm responds that Courts in this

District routinely decline to strike this defense and instead treat such assertions as denials., citing

Pujals ex rel. El Rey de los Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1330 (S.D. Fla. 2011);

McLendon v. Carnival Corp., No. 20-25138, 2021 WL 848945, at *3 (S.D. Fla. Mar. 5, 2021)

(treating mis-labeled defenses as denials).

The Court agrees that it is not a true Affirmative Defense and, therefore, will treat it as a denial

rather than strike it. See Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CV-60885, 2015 WL

11197802, at *1 (S.D. Fla. Apr. 27, 2015) (collecting cases for the proposition that specific denials

labeled as affirmative defenses are to be treated as denials rather than stricken); FAST SRL v.

Direct Connection Travel LLC, 330 F.R.D. 315, 319 (S.D. Fla. 2018) (same); Northrop & Johnson

Holding Co., Inc., 2017 WL 5632041, at *3 (denying motion

to strike affirmative defenses because “[w]hile [the] Court agrees that the defenses are merely

denials, the appropriate remedy is not to strike Affirmative Defenses 5, 9, and 14, but rather to

treat them as specific denials”). The Motion, accordingly, is denied on this point.

ii. DP Derm’s Sixth, Seventh, and Eighth Affirmative Defenses

DP Derm’s Sixth, Seventh, and Eighth Affirmative Defenses state:

6. Waiver, Estoppel, Laches. Plaintiff’s claims are barred, in whole or in part, by

waiver, estoppel, and/or laches.

7. Unclean Hands. Plaintiff’s claims are barred by the doctrine of unclean hands.

8. Statute of Limitations. Some or all claims are time-barred.

ECF No. [60] at 9.

Extropin moves to strike DP Derm’s Sixth, Seventh, and Eighth Affirmative Defenses as vague

and ambiguous shotgun pleadings. Extropin argues they “do not respond to a specific count of the

[C]omplaint. . . and are nothing more than a kitchen sink of distinct legal doctrines.” Id. DP Derm

responds that its Affirmative Defenses are sufficient under Rule 8’s fair notice standard. Moreover,

courts routinely allow recognized equitable defenses to proceed especially where the facts are

within Plaintiff’s control or will be developed in discovery.

While bare bones and boilerplate, Defendants have placed Plaintiffs on notice that these

defenses may be raised at trial and have therefore satisfied the pleading burden for affirmative

defenses. Hewitt v. Mobile Rsch. Tech., Inc., 285 F. App’x. at 696; see also Jones v. Kohl’s Dep’t

Stores, Inc., Case No. 15-CIV-61626, 2015 WL 12781195, at *2 (S.D. Fla. Oct. 16, 2015) (denying

motion to strike “single sentence defense” of laches, unclean hands, and waiver because they are

“sufficient—boilerplate but well-recognized [ ] valid defenses”); Nobles v. Convergent Healthcare

Recoveries, Inc., No. 8:15–cv–1745, 2015 WL 5098877, at *2 (M.D. Fla. Aug. 31,

2015) (declining to strike affirmative defenses that, “although stated in general terms,” gave

sufficient notice of the defenses the defendant intended to raise); Allstate Ins. Co. v. Meek, No.

8:19-cv-1181-T-36CPT, 2020 WL 2114613, at *4 (M.D. Fla. May 4, 2020). “[T]o the extent

Plaintiff[s] require[ ] greater factual detail…Plaintiffs may acquire those facts through

discovery.” Diamond Resorts U.S. Collection Dev., LLC v. Miller, No. 6:20-CV-1668-PGB-LRH,

2022 WL 452480, at *6 (M.D. Fla. Jan. 11, 2022).

Extropin also argues DP Derm’s Eighth Affirmative Defense is invalid as a matter of law, as

its claims under the Lanham Act have no statute of limitations and the claims under Florida law

are governed by Florida’s “catch all” statute of limitations period of four years. Id. at 4-5 (citing

Fla. Stat. §95.11(o)). Moreover, Extropin asserts that DP Derm has not and cannot plausibly claim

that the infringing trademark has been sold for more than four years in the United States. Id. DP

Derm concedes that the Lanham Act has no statute of limitations but offers to clarify that its Eighth

Affirmative Defense is asserted as to “laches for the Lanham Act and as statute of limitations for

[Extropin’s] state-law claims.” ECF No. [66] at 5.

In the Eleventh Circuit, courts apply the equitable defense of laches to bar untimely trademark

infringement claims, using analogous state law limitations to determine whether delay is

unreasonable. Kason Indus., Inc. v. Component Hardware Grp., Inc., 120 F.3d 1199, 1203 (11th

Cir. 1997). The Lanham Act “expressly provides for defensive use of ‘equitable principles,

including laches’”. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 678 (2014). The Court

notes that DP Derm already asserts laches as its Sixth Affirmative Defense, and though Extropin

avers that DP Derm cannot plausibly claim the infringing trademark has been sold for more than

four years, the Court is not able to make such a determination at this stage. As such, the Motion is

denied as to DP Derm’s Sixth, Seventh, and Eighth Affirmative Defenses.

iii. DP Derm’s Third and Fifth Affirmative Defenses

DP Derm’s Third and Fifth Affirmative Defenses state:

3. Fair Use. Any alleged use is descriptive, nominative, or otherwise a fair use.

5. Abandonment/Acquiescence. Plaintiff has abandoned, acquiesced in, or failed to

police its marks.

ECF No. [60] at 8-9. Extropin moves to strike DP Derm’s Third and Fifth Affirmative Defenses

as “conclusory allegations that fail to meet the pleading standards of Rule 8(a)” because DP

Derm’s allegations are unsupported by facts and fail to provide Extropin with fair notice. ECF No.

[63] at 6. DP Derm responds that its third and fifth affirmative defenses are “standard in trademark

litigation and put [Extropin] on notice of the issues to be developed in discovery.” ECF No. [66]

at 5. The Court agrees with DP Derm. While Extropin argues the affirmative defenses fail to meet

the pleading standards of Rule 8(a), DP Derm’s assertions of Fair Use, Abandonment, and

Acquiescence are sufficiently recognized to satisfy the “fair notice” requirement of Rule 8(b).

iv. DP Derm’s Second, Fourth, and Ninth Affirmative Defenses

DP Derm’s Second, Fourth, and Ninth Affirmative Defenses state:

2. No Likelihood of Confusion. DP Derm’s conduct is not likely to cause confusion

with Plaintiff’s mark.

4. Weak or Descriptive Marks. Plaintiff’s marks are weak, descriptive, or generic

and not entitled to broad protection.

9. No Irreparable Harm. Plaintiff cannot show irreparable harm and has adequate

remedies at law.

ECF No. [60] at 8-9. Extropin moves to strike DP Derm’s Second, Fourth, and Ninth Affirmative

Defenses as “conclusory and unsupported by factual allegations.” ECF No. [63] at 6. In its

Response, DP Derm concedes that its Second and Fourth Affirmative Defenses are denials. ECF

No. [66] at 5. Accordingly, the Court denies the Motion as to the Second and Fourth Affirmative

Defenses and treats them as denials.

As to the Ninth Affirmative Defense, DP Derm responds that “the Trademark Modernization

Act reinstated a rebuttable presumption of irreparable harm upon a merits showing for injunctive

relief, while expressly allowing defendants to rebut that presumption.” Id. at 6 (citing 15 U.S.C. §

1116(a) (as amended 2020)). DP Derm’s claim that Extropin cannot show irreparable harm is not

an affirmative defense. The Trademark Modernization Act creates a rebuttable presumption of

irreparable harm that shifts the burden to defendants to rebut once the plaintiff establishes

likelihood of success on the merits. See 15 U.S.C. § 1116(a). As such, the rebuttable presumption

of irreparable harm operates within the plaintiff’s burden of proof for injunctive relief and the

plaintiff need not affirmatively prove irreparable harm once likelihood of success is shown and

instead, defendants must present evidence to rebut the presumption. The Filta Grp., Inc. v. LXU,

Ltd., No. 6:25-CV-914-PGB-NWH, 2025 WL 3718465, at *5 (M.D. Fla. Dec. 23, 2025).

Accordingly, the Motion to strike is granted.

v. DP Derm’s Tenth Affirmative Defense

DP Derm’s Tenth Affirmative Defense states:

10. Good Faith. DP Derm acted in good faith without willful infringement.

ECF No. [60] at 9. Extropin moves to strike DP Derm’s Tenth Affirmative Defense because DP

Derm’s assertions are not defenses to liability under the Lanham act or Florida trade dress law.

ECF No. [63] at 7. DP Derm responds that its Tenth Affirmative Defense “goes to remedies,

including profits, enhanced damages, and attorney’s fees.” ECF No. [66] at 6. Accordingly, the

Court grants the Motion to strike.

B. Motion to Strike Biosoft’s Affirmative Defenses

i. Biosoft’s First Affirmative Defense

Biosoft’s First Affirmative Defense asserts, “The Complaint fails to state a claim upon which

relief can be granted.” ECF No. [61] at 8. Extropin moves to strike Biosoft’s First Affirmative

Defense because it improperly asserts a challenge to the sufficiency of the Complaint. For the

reasons stated above as to DP Derm’s First Affirmative Defense, the Court treats it as a denial.

ii. Biosoft’s Seventh, Eighth, and Ninth Affirmative Defenses

Biosoft’s Seventh, Eighth, and Ninth Affirmative Defenses state:

7. Waiver, Estoppel, Laches. Plaintiff’s claims are barred, in whole or in part, by

waiver, estoppel, and/or laches.

8. Unclean Hands. Plaintiff’s claims are barred by the doctrine of unclean hands.

9. Statute of Limitations. Some or all claims are time-barred.

ECF No. [61] at 9. Biosoft’s Seventh, Eighth, and Ninth Affirmative Defenses mirror DP Derm’s

Sixth, Seventh, and Eighth Affirmative Defenses and Extropin makes the same arguments in

support of its Motion as it did for DP Derm. The Court denies the Motion to strike on the same

grounds.

iii. Biosoft’s Fourth and Sixth Affirmative Defense

Biosoft’s Fourth and Sixth Affirmative Defenses state:

4. Fair Use. Any alleged use is descriptive, nominative, or otherwise a fair use.

6. Abandonment/Acquiescence. Plaintiff has abandoned, acquiesced in, or failed to

police its marks.

ECF No. [61] at 9. Biosoft’s Fourth and Sixth Affirmative Defenses mirror DP Derm’s Third and

Fifth Affirmative Defenses and Extropin makes the same arguments in support of its Motion as it

did for DP Derm. The Court denies the Motion to strike on the same grounds.

iv. Biosoft’s Second, Third, Fifth, and Tenth Affirmative Defenses

Biosoft’s Second, Third, Fifth, and Tenth Affirmative Defenses state:

2. Lack of Standing. Plaintiff lacks standing to assert some or all claims.

3. No Likelihood of Confusion. Biosoft’s use of the term “EXO SKIN” is not likely to

cause confusion with Plaintiff’s mark.

5. Weak or Descriptive Marks. Plaintiff’s marks are weak, descriptive, or generic and not

entitled to broad protection.

10. No Irreparable Harm. Plaintiff cannot show irreparable harm and has adequate

remedies at law.

ECF No. [61] at 8-9. Apart from Biosoft’s Second Affirmative Defense (lack of standing), its

Third, Fifth, and Tenth affirmative defenses mirror DP Derm’s Second, Fourth, and Ninth

affirmative defenses. Extropin makes the same arguments in support of its Motion as it did for DP

Derm. ECF No. [64] at 6. Accordingly, the Motion to strike is denied as to Biosoft’s Third and

Fifth Affirmative Defenses on the same grounds and the Court will treat them as denials. The

Motion to strike is granted as to Biosoft’s Tenth Affirmative Defense.

As to Biosoft’s Second Affirmative Defense, the Court finds that Biosoft’s claim is not

properly characterized as an affirmative defense. Standing "is a threshold jurisdictional question

which must be addressed prior to and independent of the merits of a party's claims.” United States

v. Ross, 963 F.3d 1056, 1062 (11th Cir. 2020) (quoting AT&T Mobility, LLC v. Nat'l Ass'n for

Stock Car Auto Racing, Inc., 494 F.3d 1356, 1359 (11th Cir. 2007)). “[T]he party invoking federal

jurisdiction bears the burden of proving standing.” Bischoff v. Osceola Cty., 222 F.3d 874, 878

(11th Cir. 2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). As such, the

question of standing is distinguished from affirmative defenses where the defendant bears the

burden of pleading of proof. Accordingly, the Motion to strike is granted.

v. Biosoft’s Eleventh Affirmative Defense

Biosoft’s Eleventh Affirmative Defense states:

11. Good Faith. Biosoft acted in good faith without willful infringement.

ECF No. [61] at 9. Biosoft’s Eleventh Affirmative Defense mirrors DP Derm’s Tenth Affirmative

Defense. Extropin makes the same arguments in support of its Motion as it did for DP Derm. ECF

No. [64] at 7. The Court grants the Motion to strike on the same grounds.

C. Motion to Strike Defendant Dermapenworld FC’s Affirmative Defenses

i. Dermapenworld FC’s First Affirmative Defense

Dermapenworld FC’s First Affirmative Defense states, “The Lanham Act does not apply

extraterritorially to Dermapenworld’s alleged conduct and/or Plaintiff cannot show qualifying use

in U.S. commerce.” ECF No. [68] at 7. Extropin moves to strike arguing it is “wholly insufficient

as a matter of law because it is entirely devoid of any facts that provide the basis for its

applicability, and is patently frivolous because it simply points out evidence that Plaintiff allegedly

lacks (without consideration for the truth).” ECF No. [71] at 4. Dermapenworld FC responds that

its First Affirmative Defense is routine for a foreign defendant and provides clear notice to

Extropin. ECF No. [75] at 3.

Neither a territoriality nor a “use in commerce” negation are affirmative defenses in a Lanham

Act case. Rather, under the Lanham Act, “use in commerce” is an essential element the Plaintiff

must establish as part of its prima facie case. See 15 U.S.C. § 1114. Moreover, the territoriality

principle relates to the scope of the Lanham Act and is not an affirmative defense. See Abitron

Austria GmbH v. Hetronic Int'l, Inc., 600 U.S. 412, 415. (2023) (holding that 15 U.S.C. §

1114(1)(a) is not extraterritorial and that they extend only to claims where the claimed infringing

use in commerce is domestic). The Motion is granted.

Case No. 25-cv-20713-BLOOM/Elfenbein

ii. Dermapenworld FC’s Second, Third, Fourth, Fifth, and Sixth

Affirmative Defenses

Dermapenworld FC’s Second, Third, Fourth, Fifth, and Sixth Affirmative Defenses state:

2. Fair Use. Any alleged use is descriptive, nominative, or otherwise a fair use.

3. Weak or Descriptive Marks. Plaintiff's marks are weak, descriptive, or generic

and not entitled to broad protection.

5. Waiver, Estoppel, Laches. Plaintiff's claims are barred, in whole or in part, by

waiver, estoppel, and/or laches.

6. Unclean Hands. Plaintiffs claims are barred by the doctrine of unclean hands.

ECF No. [68] at 7. Dermapenworld FC’s Second, Third, Fourth, Fifth, and Sixth Affirmative

Defenses mirror DP Derm’s Third, Fourth, Fifth, Sixth, and Seventh Affirmative Defenses.

Extropin makes the same arguments in support of its Motion as it did for DP Derm. The Court

denies the Motion to strike on the same grounds.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff's Motion, ECF No. [63], is GRANTED IN PART and DENIED IN PART.

2. Plaintiff's Motion, ECF No. [64], is GRANTED IN PART and DENIED IN PART.

3. Plaintiff's Motion, ECF No. [71], is GRANTED IN PART and DENIED IN PART.

DONE AND ORDERED in Chambers at Miami, Florida, on January 4, 2026.

BETHBLOOM =————<“i‘“COCS

UNITED STATES DISTRICT JUDGE

ce: counsel of record

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