The opinion of the court was delivered by: Walls, Senior District Judge
Plaintiff and counterclaim-defendant CSC Holdings, LLC ("Cablevision") moves to dismiss or strike portions of defendants Optimum Networks, Inc. and Frank Aznar‟s answer and counterclaims. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the motion is decided without oral argument. The motion is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Cablevision is a telecommunications provider to New York, New Jersey and Connecticut. It offers internet service provider ("ISP") and interactive cable television services. Since 1994, Cablevision has promoted its services under the registered mark OPTIMUM "and an expanding family of OPTIMUM-inclusive marks (collectively, the "OPTIMUM Marks‟)." (Compl. ¶ 9.) Cablevision owns the incontestable federal trademark registration for its OPTIMUM mark as well as registrations for other of the OPTIMUM Marks. Cablevision has registered and used a number of OPTIMUM-inclusive internet domain names including Optimum.com and Optimum.net.
Cablevision alleges that after it began using the OPTIMUM Marks, defendants began using the mark OPTIMUM ISP, the names OPTIMUM NETWORKS and Optimum Networks, Inc., and the domain name OptimumISP.com to promote their ISP related services. Given the similarity of the names, Cablevision asserts that defendants‟ actions have falsely caused customers to believe that the two entities are related and that defendants have acted to exploit Cablevision‟s goodwill surrounding the OPTIMUM Marks.
On March 2, 2010, Cablevision filed a complaint alleging trademark infringement, false designation of origin, violation of the Anticybersquatting Consumer Protection Act, and unfair competition under New Jersey statutory and common law. After this Court denied defendants‟ motion to dismiss, they filed an answer and counterclaims on September 8, 2010. Defendants‟ first counterclaim requests a declaratory judgment stating that it is the rightful first user of the name OPTIMUM NETWORKS. The second counterclaim alleges that "optimum network" is a descriptive term and that Cablevision may not claim exclusive right to it. Count three attempts to allege that Cablevision has committed a trademark violation. The final counterclaim simply states: "Plaintiff‟s assertions of the claims herein and actions constitute unfair competition and violation of the New Jersey Unfair Competition law, applicable federal and state statutes, and common law." (Ans., at 6.) Defendants‟ first affirmative defense is that the complaint fails to state a cause of action upon which relief may be granted. Cablevision urges this Court to dismiss the last three of defendants‟ counterclaims, its first affirmative defense and its claim for compensatory damages.
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court is required to "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 306 (3d Cir. 2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.
"[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 546. Thus, "a district court weighing a motion to dismiss asks "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.‟" Twombly, 550 U.S. at 563 n.8 (citation omitted).
Federal Rule of Civil Procedure 12(f) states that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). When a party moves to strike a defense on insufficiency grounds, the motion should only be granted where "the insufficiency of the defense is clearly apparent." United States ex rel. Monahan v. Robert Wood Johnson Univ. Hosp. at Hamilton, No. 08-4809, 2009 WL 4576097, at *3 (D.N.J. Dec. 1, 2009) (quoting Cipollone v. Liggett Grp., Inc., 789 F.2d 181, 188 (3d Cir. 1986)).
Cablevision alleges that defendants‟ second counterclaim fails to even reference any statutory or common law cause of action, let alone state a claim upon which relief can be granted. Cablevision also argues that even if the counterclaim can be read to request a declaratory judgment stating that Cablevision lacks rights because the term "optimum" is merely descriptive, such a claim would fail because of ...