Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COUNTERCLAIMS TO DEFENDANT THC’S COUNTERCLAIM BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION 901 A. Factual Background. ZD B. Procedural Background. ZD II. LEGAL ANALYSIS. 1 A. Technical Insufficiencies. 1 1. The paiiies’ arguments. 1 2. Applicable standards. 1 S. Analysis . 1 B. Substantive Insufficiencies..•_ 1 1. Applicable standards. 1 2. 1 a. Arguments of the paiiies . 1 b. Analysis. 1 S. Failure to plead fraud ivith particulanty. 1 a. the . 1 b. Analysis. 1 i Rule 9 1 ii. Pleading of “circumstances ” of the fraud . 1 Hi. Pleading “on information and belief’ 1 Failure to state a claim based on improper tacking”.917 a. "Redundancy” of the claim.918 b. ’’Abandonment” and i. "Abandonment”.918 "Tacking” and “improper tacking”.920 n. .921 Hi. ’’Improper tacking” as “abandonment”. .923 ’’Unclean hands”. .923 a. the .924 b. The “unclean hands” cause of action. .926 c. Sufficiency of the allegations of “unclean hands”. .926 contrai-y to assurances. .927 ii Wrongful assertion of trademark lights. .928 Unfair competition. .928 a. Arguments the .929 b. Unfair competition under the Lanham Ad and state law .932 c. Sufficiency of the allegations to state a claim. .932 Declaratory judgment. III. CONCLUSION.932 The motion to dismiss presently before the court puts the court in the rather unusual position of considering the sufficiency of claims asserted in the third round of the parties’ pleadings. This is an action initiated by the plaintiffs to protect their common-law and state-registered trademarks, which are used in connection with their provision of health care services in Iowa and western Illinois. After this litigation was commenced, one of the defendants acquired the rights to a federally-registered trademark, and then asserted a counterclaim of infringement of that trademark. The counterclaim in the second round of pleadings prompted “counterclaims to the counterclaim” in the third round, as the original plaintiffs asserted various challenges to the defendant’s federally-registered mark, conduct related to the acquisition of the federally-registered mark, and the assertion of rights pursuant to the newly-acquired mark. The original defendants now assert that the original plaintiffs’ “counterclaims to counterclaim” fail to state claims upon which relief can be granted. I. INTRODUCTION A. Factual Background This matter is before the court on a motion to dismiss certain claims, so that the factual background here is necessarily drawn from the parties’ pleadings, and is intended only to put in context the motion presently pending before the court. The plaintiffs in this action identify themselves as Iowa Health System (IHS), an Iowa corporation with its principal place of business in this state; Trinity Health Systems, Inc. (THS), an Iowa corporation, also with its principal place of business in Iowa; and Trinity Regional Health System (TRHS), an Illinois corporation with its principal place of business in Illinois. The plaintiffs allege that they are affiliated to provide healthcare services and products in Iowa and western Illinois under common-law and state-registered trademarks “Trinity” and “Trinity Health.” The plaintiffs will be referred to collectively herein as “the Trinity Iowa Plaintiffs.” In their responsive pleadings, the defendants identify themselves as the following: Trinity Health Corporation (THC), formerly Holy Cross Health System, an Indiana corporation with its principal place of business in Indiana; Trinity Health-Michigan (THM), formerly Mercy Health Services (MHS), a Michigan corporation with its principal place of business in Michigan; Mercy Health Network, Inc. (MHN), a Delaware non-stock corporation with two members, Catholic Health Initiatives and THM; and Catholic Health Initiatives (CHI), a Colorado corporation with its principal place of business in that state. The defendants operate hospitals and provide other healthcare services in Michigan, Indiana, Ohio, Maryland, Iowa, Idaho, and California, and have recently acquired by assignment rights in a federally-registered service mark for “Trinity Healthcare Services,” including a triangle-shaped logo. The defendants are described collectively herein as “the Trinity Michigan Defendants.” A dispute has arisen between the parties concerning the use of the term “Trinity” in connection with the provision of healthcare services, primarily in Iowa. In early 2000, the Trinity Iowa Plaintiffs, and more particularly IHS, learned that the Trinity Michigan Defendants allegedly intended to provide health services, in Iowa and elsewhere, under the name Trinity Health. Because use of the name Trinity Health by the Trinity Michigan Defendants might be confused with use of Trinity or Trinity Health by the Trinity Iowa Plaintiffs, IHS sent notice of its established common-law trademark rights in “Trinity” and “Trinity Health” to the Trinity Michigan Defendants. The parties then entered into negotiations concerning use of the terms “Trinity” and “Trinity Health.” In the course of those negotiations, on February 25, 2000, counsel for THM (still known as MHS at that time), wrote counsel for IHS a letter, which, in pertinent part, indicated the limited use that the Trinity Michigan Defendants intended to make of “Trinity Health”: MHS intends that the Trinity Health name will have a limited, corporate level use in Iowa. MHN was formed as a joint operating organization (incorporated in Delaware), sponsored by Catholic Health Initiatives and MHS. As a result of the Holy Cross affiliation, Trinity Health [i.e., Trinity Health-Michigan or THM] would be substituted for MHS as a member of MHN. MHN then intends to use the TRINITY HEALTH name as part of a tag line for its corporate entity as follows: MERCY HEALTH NETWORK, SPONSORED BY CATHOLIC HEALTH INITIATIVES AND TRINITY HEALTH. The TRINITY HEALTH name (along with the rest of the mark) will only appear at the corporate level in the Iowa operations of MHN, on such things as the corporate stationery and signs at the West Des Moines corporate office. Defendants’ Memorandum In Support Of Their Motion To Dismiss Counterclaims, Exhibit 1, at l. While negotiations were continuing, on June 14, 2000, IHS obtained Iowa state registrations for the marks “Trinity” and “Trinity Health.” See Complaint, Exhibits 1 (state registration, pursuant to IOWA CODE CH. 548, of “mark described as ... TRINITY” by IHS, indicating that “[t]he mark was first used in the state of Iowa on January 1, 1973”) & 2 (state registration, pursuant to IOWA CODE CH. 548, of “mark described as ... TRINITY HEALTH” by IHS, indicating that “[t]he mark was first used in the state of Iowa on January 1, 1973”). The Trinity Iowa Plaintiffs contend that these state registrations supplement their common-law trademark rights in Iowa. Somewhat later, on March 5, 2001, after this litigation was initiated and after the Trinity Michigan Defendants had answered the Complaint, THC alleges that it obtained an assignment of rights to an incontestable federally-registered trademark for “Trinity Healthcare Services,” including a triangular design, U.S. Registration No. 1,783,669 (the ’669 mark). The mark, as it appears in the registration, is the following: THC’s Amended Answer, Affirmative Defenses, Counterclaim And Jury Demand, Exhibit 1. The registration indicates that the mark was registered on July 20, 1993, in the SERVICE MARK PRINCIPAL REGISTER by UHCS Management, Inc., a Tennessee Corporation, for “HEALTH CARE SERVICES, IN CLASS 42 (U.S.CL.100),” with a first use on May 12, 1991, and first use in commerce also on May 12, 1991. Id. The registration bears the following limitations: NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE “HEALTHCARE SERVICES”, APART FROM THE MARK AS SHOWN. THE MARK CONSISTS OF THE WORD “TRINITY” IN COMBINATION WITH A TRIANGLE SHAPED LOGO INCLUDING A LEAF OR PETAL DESIGN THEREIN. Id. A “TRADEMARK ASSIGNMENT,” dated March 5, 2001, states that Trinity Healthcare Management Company, Inc., a Tennessee corporation, “the owner of the entire right, title and interest in and to” the ’669 mark “assign[s] and transfers] to [THC] any and all right, title and interest in and to the Trademark Rights,” described as follows: U.S. Trademark Registration No. 1783669 for TRINITY HEALTHCARE SERVICES AND DESIGN dated JULY 20,1993; and Any and all rights and privileges provided under the trademark and other laws of the United States, the individual states thereof and jurisdictions foreign thereto with respect to the foregoing; the GOODWILL of the business symbolized by the mark; and any and all renewals thereof. THC’s Amended Answer, Affirmative Defenses, Counterclaim And Jury Demand, Exhibit 2, at 1. THC now contends that the Trinity Iowa Plaintiffs are infringing the ’669 mark and the Trinity Iowa Plaintiffs contend, inter alia, that the ’669 mark should be cancelled. B. Procedural Background Although negotiations concerning the use of “Trinity” and “Trinity Health” were continuing, the Trinity Iowa Plaintiffs contend that they filed the present lawsuit on September 28, 2000, to preserve their rights. Their Complaint asserts claims of unfair competition under § 43(a) of the Trademark Act of 1946 (the Lanham Act), 15 U.S.C. § 1125(a); trademark dilution under § 43(c) of the Lanham Act, 15 U.S.C. § 1125(c); trademark infringement under IOWA CODE CH. 548; trademark infringement under Iowa common law; and unfair competition under Iowa common law. The parties had an understanding that the Complaint would not be served immediately in light of their continuing negotiations. However, as the deadline for service of the Complaint approached, the Trinity Iowa Plaintiffs served the Complaint on the Trinity Michigan Defendants in late January of 2001. By agreement, the time for answers to the Complaint was extended a number of times. Eventually, on April 11, 2001, defendants THC, THM, and MHN filed their Answer and Affirmative Defenses, and defendant CHI filed a separate Answer and Affirmative Defenses. On July 6, 2001, the court granted THC’s motion for leave to file a separate Amended Answer, Affirmative Defenses, and Counterclaim. In its Counterclaim, THC alleges that, notwithstanding that IHS obtained state registration in Iowa for the marks “Trinity” and “Trinity Health” for healthcare services on June 23, 2000, as of July 20, 1993, the date of the federal registration of the ’669 trademark, IHS had- obtained common-law trademark rights in the “Trinity” and “Trinity Health” marks, if at all, only in the Fort Dodge, Iowa, area. However, THC alleges that, since registration of the ’669 trademark, IHS has used the “Trinity” and “Trinity Health” marks in commerce both within and outside of the Fort Dodge, Iowa, area. THC therefore asserts a counterclaim of infringement of the federally-registered ’669 mark by IHS. On July 27, 2001, the Trinity Iowa Plaintiffs jointly filed a Reply And Counterclaims to THC’s Counterclaim. In their first counterclaim, the Trinity Iowa Plaintiffs seek cancellation of the ’669 mark under 15 U.S.C. § 1064 on the ground that the assignment of the mark to THC resulted in an abandonment of the registration and/or the ’669 mark. In their second counterclaim, they seek cancellation of the ’669 mark under 15 U.S.C. § 1064 on the ground that the original registration was fraudulently procured. In their third counterclaim, also under 15 U.S.C. § 1064, the Trinity Iowa Plaintiffs seek cancellation of the ’669 mark for “improper tacking.” In their fourth counterclaim, they allege “unclean hands” on the part of THC in its procurement of the federal registration of the ’669 mark. In their fifth counterclaim, they allege unfair competition in violation of the Lanham Act and state common law. Finally, in their sixth counterclaim, the Trinity Iowa Plaintiffs seek a declaratory judgment concerning the respective rights of the parties to use marks including the terms “Trinity” and/or “Trinity Health” within the Trinity Iowa Plaintiffs’ trade area. In lieu of a reply to the Counterclaims to THC’s Counterclaim, on August 20, 2001, the Trinity Michigan Defendants moved to dismiss those Counterclaims. The Trinity Iowa Plaintiffs’ resisted the motion to dismiss on September 7, 2001, and the Trinity Michigan Defendants filed a reply on September 18, 2001. Neither the plaintiffs nor the defendants requested oral arguments on the motion to dismiss. Therefore, the Trinity Michigan Defendants’ motion to dismiss is now fully submitted. II. LEGAL ANALYSIS A. Technical Insufficiencies 1. The parties’ arguments The Trinity Michigan Defendants first urge the court to dismiss the Trinity Iowa Plaintiffs’ Counterclaims to THC’s Counterclaim on the ground that the Counterclaims do not comply with Rules 8(e) and 10(b) of the Federal Rules of Civil Procedure. Specifically, they contend that the Trinity Iowa Plaintiffs’ incorporation into their Counterclaims of prior paragraphs of their pleadings, including affirmative defenses, denials, and admissions, makes it difficult or impossible to frame a reply that addresses each paragraph fully. They rely on Porto Transport, Inc. v. Consolidated Diesel Elec. Corp., 19 F.R.D. 256, 257-58 (S.D.N.Y.1956), as authority for the technical insufficiency of the Counterclaims to THC’s Counterclaim. The Trinity Iowa Plaintiffs, however, contend that Porto Transport does not stand for the proposition that their Counterclaims should be stricken in their entirety. Rather, they contend that incorporation by reference is commonly used to reduce the complexity of pleadings and that the incorporated paragraphs here were drawn either from the Trinity Iowa Plaintiffs’ original Complaint or their Counterclaim to THC’s Counterclaim, and that the Trinity Michigan Defendants had no trouble responding individually to the paragraphs now incorporated by reference. Thus, the Trinity Iowa Plaintiffs contend that the Trinity Michigan Defendants can respond to paragraphs that incorporate prior paragraphs by reference, in their turn, by incorporating by reference their prior responses to the incorporated paragraphs. Moreover, they point out that the Trinity Michigan Defendants do not contend that they somehow had inadequate notice of the cause of action asserted in each counterclaim. In reply, the Trinity Michigan Defendants argue that, while incorporation by reference of prior allegations may be common practice, the incorporation by reference here goes far beyond incorporation of prior factual allegations, resulting in pleadings to which the Trinity Michigan Defendants cannot reasonably respond. They also point out that, contrary to the Trinity Iowa Plaintiffs’ contentions, they have not yet responded to any of the incorporated paragraphs, because all are incorporated from the Answer and Counterclaims to THC’s Counterclaim, to which the Trinity Michigan Defendants have first asserted their motion to dismiss, not from the original Complaint. 2. Applicable standards A claim or counterclaim must be presented “with clarity sufficient to avoid requiring a district court or opposing party to forever sift through its pages in search” of the pleader’s claims. Jennings v. Entry, 910 F.2d 1434, 1436 (7th Cir.1990). Nor should a claim “appea[r] to be a legal bouillabaisse with bits of [several different claims] ... all stirred and served as one count.” U.S. General, Inc. v. City of Joliet, 598 F.2d 1050, 1051-52 (7th Cir.1979) (commenting on a party’s non-compliance with Rule 8(a) and (e)). Consequently, Rules 8(e) and 10(b) of the Federal Rules of Civil Procedure establish certain requirements for pleadings. First, Rule 8(e) provides as follows: (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or. motions are required. (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be subject to the obligations set forth in Rule 11. Fed. R. Civ. P. 8(e). Next, Rule 10(b) provides as follows: (b) Paragraphs; Separate Statements. All averments of claim or defense shah be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. Fed. R. Civ. P. 10(b). Thus, Rule 8(e)(1) requires simplicity and clarity, generally, while Rules 8(e)(2) and 10(b) explain the requirements for pleading alternative theories and separate claims. Specifically, “Federal Rule of Civil Procedure 8(e)(2) allows a party to set forth two or more statements of a claim in one count; however, Rule 10(b) requires pleading separate counts for each distinctive statutory and constitutional claim.” Harris v. River View Ford, Inc., 2001 WL 1191188, *1 (N.D.Ill. Oct. 4, 2001); Demes v. ABN Amro Servs. Co., Inc., 2001 WL 563813, *2 (N.D.Ill. May 23, 2001) (“Rule 10(b) requires that ... each claim founded upon a separate transaction or occurrence be stated in separate counts. The rule has been interpreted to require separate counts for each distinctive statutory and constitutional claim.”) (citations omitted). Some time ago, the Eighth Circuit Court of Appeals stated that a complaint, and presumably a counterclaim, can be dismissed pursuant to Rule 8(e)(1) if it is “ ‘confusing, ambiguous, redundant, vague’ and a completely unintelligible statement of argumentative fact.” Koll v. Wayzata State Bank, 397 F.2d 124, 125 (8th Cir. 1968) (quoting Wallach v. City of Pagedale, Mo., 359 F.2d 57 (8th Cir.1966), and Wallach v. City of Pagedale, 376 F.2d 671 (8th Cir.1967)). However, the Eighth Circuit Court of Appeals has since stated that “[a] complaint which fails to comply with Rule 8 may be dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b) after allowing time to file an amended complaint,” because “ ‘[dismissal is ... a drastic sanction which should be sparingly exercised and is reviewable for abuse of discretion.’ ” Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir.1988) (emphasis added) (quoting Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 96 (8th Cir.1971)), cert. denied, 488 U.S. 1013, 109 S.Ct. 802, 102 L.Ed.2d 793 (1989); see also Azar v. Conley, 456 F.2d 1382, 1391 (6th Cir.1972) (suggesting that a dismissal is not appropriate unless there is a “gross violation” of Rule 8(e) such that the responding party “could not reasonably be expected to answer the complaint as it stands”). This court reads Mangan as suggesting that, if a pleading fails Rule 8(e), it should not be dismissed in the first instance; rather, the pleader should be given the opportunity to file an amended pleading complying with Rule 8(e), and only if the pleader fails to do so, or the amended pleading suffers from similar insufficiencies, is it appropriate to dismiss the pleading. Similarly, “courts have generally required plaintiffs to replead rather than dismiss counts based on [a Rule 10(b) ] ‘violation.’ ” See Demes v. ABN Amro Servs. Co., Inc., 2001 WL 563813, *2 (N.D.Ill. May 23, 2001) (citing cases from the Northern District of Illinois so holding). The Trinity Michigan Defendants challenge the pleadings here specifically on the basis of the incorporation by reference of prior paragraphs, including affirmative defenses, to such an extent that they cannot reasonably be expected to respond. Excessive incorporation by reference from one count to another can lead to the introduction into the pleadings “of considerable unnecessary matter.” Van Dyke Ford, Inc. v. Ford Motor Co., 399 F.Supp. 277, 285 (E.D.Wis.1975). However, the ultimate question under Rules 8(e) and 10(b) would seem to be whether “the theory and basis of the [various] counts are easily distinguishable.” Id. Incorporation by reference of affirmative defenses can be problematic, as suggested in the Porto Transport case upon which the Trinity Michigan Defendants specifically rely: The answer sets up numerous affirmative defenses and each successive defense incorporates by reference all preceding defenses. Thus, the ninth affirmative defense contains thirteen separate defenses, one counter-claim and one cross-claim. Although defendant may feel that the incorporation of all prior defenses in each defense is conducive to continuity, it places plaintiff in the position of having to reply to a counterclaim which also incorporates seven affirmative defenses. The Federal Rules only require replies to counterclaims and not to affirmative defenses. Nevertheless, a responsive pleading to the counterclaim would also entail a replication to the seven affirmative defenses. Porto Transport v. Consolidated Diesel Elec. Corp., 19 F.R.D. 256, 257-58 (S.D.N.Y.1956). However, as the Trinity Iowa Plaintiffs point out, the court in Porto TranspoH did not dismiss or strike the counterclaims on the basis of this “violation” of Rules 8(e) and 10(b); rather, the court concluded that, “[u]nder the circumstances, the defendant should serve an amended answer separately stating and numbering its defenses.” Id. at 258. 3. Analysis The court cannot say that the Trinity Iowa Plaintiffs’ Counterclaims to THC’s Counterclaim are so “ ‘confusing, ambiguous, redundant, vague,’ ” or such “a completely unintelligible statement of argumentative fact” that dismissal of the Counterclaims in their entirety is appropriate. Koll, 397 F.2d at 124 (quoting Wallach, 359 F.2d at 57); see also Azar, 456 F.2d at 1391 (permitting dismissal only for a “gross violation” of Rule 8(e)). Indeed — ignoring incorporated material, for the moment — each counterclaim, with the exception of the Fifth Cause of Action, states quite clearly a separate, specific claim for relief in numbered paragraphs stating “a single set of circumstances.” See Fed. R. Civ. P. 10(b). Thus, “the theory and basis of the [various] counts are easily distinguishable,” Van Dyke Ford, Inc., 399 F.Supp. at 285, at least when paragraphs incorporated by reference are ignored. It is true that little confusion is likely to arise, for example, from the Trinity Iowa Plaintiffs’ incorporation by reference into their reply to the Counterclaim of their replies to the fourteen paragraphs of THC’s general allegations, see Reply to Counterclaim, ¶¶ 1-14, their incorporation by reference of paragraphs 1-16 of their reply in paragraph 3 of their own Counterclaims, see Counterclaims, ¶ 3, or even incorporation by reference of paragraphs 1-26 of the Counterclaims, all factual allegations, in paragraph 27, the first paragraph of the “First Cause of Action” in the Counterclaims. See Counterclaims, ¶ 27. This is so, because the paragraphs incorporated by reference are essentially factual allegations demonstrating clearly and concisely the basis for the Trinity Iowa Plaintiffs’ reply and Counterclaims. In other words, these incorporations by reference do serve as a “shorthand” way of reiterating pertinent factual allegations. However, the defendants are correct that indiscriminate incorporation by reference of other preceding paragraphs, including affirmative defenses and preceding counterclaims, gives the Counterclaims something of the “appear[ance of] a legal bouillabaisse,” U.S. General, Inc., 598 F.2d at 1051-52, making it necessary for the “court and an opposing party to forever sift through its pages in search” of the Trinity Iowa Plaintiffs’ Counterclaims. Jennings, 910 F.2d at 1436. Far more confusing than the examples given just above is the wholesale incorporation by reference into each of the first five Counterclaims of all of the affirmative defenses and all of the preceding claims. See Counterclaims, ¶¶ 27, 33, 47, 51, and 62. The comparative clarity of the first five Counterclaims, when incorporated paragraphs are ignored, dissipates when the scope of the incorporated allegations, defenses, and counterclaims is recognized, as the precise factual basis and legal theories for individual counterclaims become blurred almost beyond recognition. See Porto Transport, 19 F.R.D. at 257-58. “[A] responsive pleading to [each] counterclaim would also entail a replication to the [eight] affirmative defenses” and each of the preceding counterclaims. Cf. id. In short, these excessive incorporations by reference have led to the introduction into the pleadings “of considerable unnecessary matter.” Van Dyke Ford, Inc., 399 F.Supp. at 285. On the other hand, there might be some justification for reiteration of all prior allegations, affirmative defenses, and counterclaims into a counterclaim for declaratory judgment, as in the Trinity Iowa Plaintiffs’ Sixth Cause of Action in their Counterclaims. The remedy for excessive incorporation by reference, however, as the Trinity Iowa Plaintiffs contend, is not the dismissal of their Counterclaims in their entirety. Rather, they “should serve an amended [reply and counterclaims] separately stating and numbering [their] defenses,” Porto Transport, 19 F.R.D. at 258, and leaving out of their individual counterclaims incor-porations by reference that are not simply incorporations by reference of factual allegations that lend further support to the individual counterclaim at issue. See Mangan, 848 F.2d at 911 (permitting dismissal with prejudice pursuant to Rule 41(b) only after the pleader fails to comply with an order to amend to comply with Rule 8); Demes, 2001 WL 563813 at *2 (N.D.Ill. May 23, 2001) (pursuing the same course with Rule 10(b) insufficiencies). The Trinity Michigan Defendants’ motion to dismiss pursuant to Rules 8(e) and 10(b) will therefore be granted to this limited extent: Should the Trinity Iowa Plaintiffs’ Counterclaims otherwise survive the present motion to dismiss, the Trinity Iowa Plaintiffs will be given time to amend their Counterclaims accordingly and the Trinity Michigan Defendants will be given a reasonable period of time to frame a responsive pleading to the amended Counterclaims. Although the Trinity Michigan Defendants’ contentions regarding the insufficiency of the Counterclaims under Rules 8(e) and 10(b) focused primarily on excessive incorporations by reference, the Trinity Michigan Defendants also contend elsewhere in their brief that if the Trinity Iowa Plaintiffs’ Third Counterclaim, alleging “improper tacking” is, as the plaintiffs contend, another assertion that the ’669 mark has been “abandoned,” then that Counterclaim is just an alternative theory for their First Counterclaim, expressly alleging “abandonment,” one of the statutory grounds for cancellation of a trademark under 15 U.S.C. § 1064, and should have been stated in the First Counterclaim. The court concludes, however, that the pleading of Counterclaims One and Three as separate counts does not constitute a “technical” violation of Rule 10(b). Although the two counterclaims may have essentially the same “statutory” basis, § 1064(3), they appear to be based upon separate kinds of conduct allegedly resulting in “abandonment,” and thus appear to be based upon “distinctive” theories and “separate transactions or occurrences.” Cf Harris, 2001 WL 1191188 at*l (“Rule 10(b) requires pleading separate counts for each distinctive statutory and constitutional claim.”); Demes, 2001 WL 563813 at *2 (“Rule 10(b) requires that ... each claim founded upon a separate transaction or occurrence be stated in separate counts. The rule has been interpreted to require separate counts for each distinctive statutory and constitutional claim.”) (citations omitted). In short, the court cannot conclude, based on the precise “abandonment” counterclaims alleged, that it was a “technical” violation of Rule 10(b) for the Trinity Iowa Plaintiffs to give notice of their separate “abandonment” theories in separate counterclaims. Although not challenged by the Trinity Michigan Defendants, the court notes, sua sponte, that the Trinity Iowa Plaintiffs’ Fifth Cause of Action in their Counterclaims does state distinctive statutory and common-law “unfair competition” theories, one under the Lanham Act and one under Iowa common law. Consequently, pursuant to Rules 8(e) and 10(b), these distinctive theories of “unfair competition” should have been stated in separate counts. Cf. Harris, 2001 WL 1191188 at*l (“Rule 10(b) requires pleading separate counts for each distinctive statutory and constitutional claim.”); Demes, 2001 WL 563813 at *2 (“Rule 10(b) requires that ... each claim founded upon a separate transaction or occurrence be stated in separate counts. The rule has been interpreted to require separate counts for each distinctive statutory and constitutional claim.”) (citations omitted). Should these counterclaims otherwise survive the motion to dismiss, the court will grant the Trinity Iowa Plaintiffs leave to amend their Reply and Counterclaims to assert these distinctive causes of action in separate counts. B. Substantive Insufficiencies 1. Applicable standards In addition to their “technical” challenges, the Trinity Michigan Defendants also assert that each of the Trinity Iowa Plaintiffs’ Counterclaims fails to state a claim upon which relief can be granted, at least as to some or all of the defendants. The issue on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of its claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiffs complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir.1999) (“On a motion to dismiss, we review the district court’s decision de novo, accepting all the factual allegations of the complaint as trae and construing them in the light most favorable to [the non-mov-ant].”); St. Croix Waterway Ass’n v. Meyer, 178 F.3d 515, 519 (8th Cir.1999) (“We take the well-pleaded allegations in the complaint as true and view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff.”); Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.1999) (same); Midwestern Machinery, Inc. v. Northwest Airlines, 167 F.3d 439, 441 (8th Cir.1999) (same); Wisdom v. First Midwest Bank, 167 F.3d 402, 405 (8th Cir.1999) (same); Duffy v. Landberg, 133 F.3d 1120, 1122 (8th Cir.) (same), cert. denied, 525 U.S. 821, 119 S.Ct. 62, 142 L.Ed.2d 49 (1998); Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir.1997) (same); WMX Techs., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1198 (8th Cir.1997) (same); First Commercial Trust v. Colt’s Mfg. Co., 77 F.3d 1081, 1083 (8th Cir.1996) (same). The court is mindful that in treating the factual allegations of a complaint as true pursuant to Rule 12(b)(6), the court must “reject conclusory allegations of law and unwarranted inferences.” Silver v. H & R Block, Inc., 105 F.3d 394, 397 (8th Cir.1997) (citing In re Syntex Corp. Securities Lit., 95 F.3d 922, 926 (9th Cir.1996)); Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (the court “do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts,” citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987), and 5 ChaRLes A. Wiught & ArthüR R. Miller, Federal Practice And PROCEdure § 1357, at 595-97 (1969)); see also LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1103 (6th Cir.1995) (the court “need not accept as true legal conclusions or unwarranted factual inferences,” quoting Morgan, 829 F.2d at 12). Conclusory allegations need not and will not be taken as true; rather, the court will consider whether the facts alleged in the complaint, accepted as true, are sufficient to state a claim upon which relief can be granted. Silver, 105 F.3d at 397; Westcott, 901 F.2d at 1488. The United States Supreme Court and the Eighth Circuit Court of Appeals have both observed that “a court should grant the motion and dismiss the action ‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’” Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); accord Conley, 355 U.S. at 45-46, 78 S.Ct. 99 (“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.”); Meyer, 178 F.3d at 519 (“The question before the district court, and this court on appeal, is whether the plaintiff can prove any set of facts which would entitle the plaintiff to relief’ and “[t]he complaint should be dismissed ‘only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations,’ ” quoting Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995)); Gordon, 168 F.3d at 1113 (“We will not dismiss a complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would demonstrate an entitlement to relief.”); Midwestern Machinery, Inc., 167 F.3d at 441 (same); Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir.1998) (same); Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir.1997) (same); Doe, 107 F.3d at 1304 (same); WMX Techs., Inc., 105 F.3d at 1198 (same). The Rule does not countenance dismissals based on a judge’s disbelief of a complaint’s factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Thus, “[a] motion to dismiss should be granted, as a practical matter, only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (internal quotation marks and ellipses omitted); accord Parnes, 122 F.3d at 546 (also considering whether there is an “insuperable bar to relief’ on the claim). Applying these standards, the court will consider in turn the Trinity Michigan Defendants’ various assertions that the Trinity Iowa Plaintiffs’ Counterclaims to THC’s Counterclaim fail to state claims upon which relief can be granted. 2. Improper parties a. Arguments of the parties The Trinity Michigan Defendants assert that the Trinity Iowa Plaintiffs’ “cancellation” counterclaims — Counterclaims One, Two, and Three alleging abandonment, fraudulent procurement, and “improper tacking,” respectively — must be dismissed as to THM, MHN, and CHI, because only the owner of a trademark, in this case, THC, is a proper defendant to a suit for cancellation of the trademark. THC contends further that not even an exclusive licensee of a trademark can stand in the owner’s shoes with respect to such attacks on a trademark. THC contends that it alone owns the ’669 mark and that the Trinity Iowa Plaintiffs have not alleged that rights in the ’669 mark have been assigned to, or even exclusively licensed to, any other defendant. The Trinity Iowa Plaintiffs acknowledge that THC has alleged that it is the owner of the ’669 mark by assignment from the original owner. However, they contend that it is their own allegations, not THC’s, that must be taken as true under Rule 12(b)(6), in the context of the present motion to dismiss, and that they have alleged that THC “or Defendants” are the owners of or. have rights in the ’669 mark and registration. The Trinity Iowa Plaintiffs contend that they have not yet completed discovery into the matter of ownership of the ’669 mark and registration. Thus, they assert that their allegations support causes of action for “cancellation” against all of the Trinity Michigan Defendants, and for the court to hold otherwise, it would have to engage in fact-finding concerning ownership of the ’669 mark that cannot properly be made pursuant to a Rule 12(b)(6) motion. In reply, the Trinity Michigan Defendants contend that there is no reasonable factual basis for the Trinity Iowa Plaintiffs’ allegation that any defendant other than THC owns the ’669 mark, when an assignment of that mark to THC alone is attached to THC’s Counterclaim. The Trinity Michigan Defendants contend that there must be some factual basis for asserting a claim against a particular defendant before suit is filed. b. Analysis The Trinity Michigan Defendants rely on Informix Software, Inc. v. Oracle Corp., 927 F.Supp. 1283 (N.D.Cal.1996), in support of their contention that only the owner of a trademark, and not any licensee, is the proper defendant in an action to cancel a trademark. In Informix Software, the district court observed that “[t]he issue of who can be sued for trademark cancellation in federal court appears to be an issue of first impression,” see Informix Software, 927 F.Supp. at 1285, and it does not appear that any court has since considered the question. In Informix Software, the court concluded that neither 15 U.S.C. § 1119, which provides for concurrent jurisdiction of the federal courts and the Trademark Trial and Appeal Board over cancellation of trademarks, nor 15 U.S.C. § 1064, which identifies the grounds for, and identifies the party who can bring, an action for cancellation of a trademark, “expressly delineate[s] the parties who may be sued for trademark cancellation.” Informix Software, 927 F.Supp. at 1286. However, the court reasoned that, because § 1119 “provides that the Court may rectify the trademark register with respect to ‘the registrations of any party to the action,’ ” that section “suggests that a complaint for trademark cancellation should proceed against the party who currently owns the trademark.” Id. (quoting 15 U.S.C. § 1119). The court reasoned further that, even though an exclusive licensee may otherwise be able to “stand in the shoes” of a trademark owner, because a licensor still has the duty to control its licensee’s use of the mark, that duty “also strongly suggests that the ultimate responsibility for the validity of a trademark lies with the licensor, not with the licensee.” Id. The court therefore concluded that an exclusive licensee is not a proper defendant in a suit for cancellation of a trademark; rather, “the owner of the trademark is the only proper defendant.” Id. While the Trinity Iowa Plaintiffs do not disagree with the decision in Informix Software or cite any contrary authority, they do assert that the question of ownership of the ’669 trademark cannot be settled on a motion to dismiss, where they have alleged that THC “or Defendants” may be the owner of the mark. The court believes that the Trinity Michigan Defendants’ challenge to assertion of the first of the Counterclaims to THC’s Counterclaim against any defendant other than THC may be readily resolved at the summary judgment stage of the proceedings. At that point, the Trinity Michigan Defendants will have the opportunity to submit evidence demonstrating beyond dispute that THC alone is the owner of the ’669 mark, and thus the only proper party to a claim for cancellation of the mark, see, e.g., Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (the party moving for summary judgment bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue”), and the Trinity Iowa Plaintiffs will be put to the burden of generating a genuine issue of material fact, if they can, that any party other than THC is the owner of the mark, and hence a proper defendant on their “cancellation” claims. See FED. R. CIV. P. 56(e) (the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial”); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, at this point in the proceedings, the court must assume that all facts alleged in the Trinity Iowa Plaintiffs’ Counterclaims are true, because those are the pleadings challenged here pursuant to Rule 12(b)(6), and the court must liberally construe those allegations, see Conley, 355 U.S. at 45-46, 78 S.Ct. 99, dismissing “ ‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” Handeen, 112 F.3d at 1347 (quoting Hishon, 467 U.S. at 73, 104 S.Ct. 2229). The court finds that the allegation of ownership of the mark by each of the defendants is an allegation of fact, not a “conclusory allegatiofn] of law” or an “unwarranted inference]” here, Silver, 105 F.3d at 397, where the allegations of both sides indicate that the defendants intend to make use of the mark in question for joint activities. The “cancellation” counterclaims against defendants other than THC cannot be dismissed against the standard applicable to a motion to dismiss, because proof that the other defendants are “owners” of the ’669 mark would be “a set of facts that could be proved consistent with the allegations.” Id. Nor does THC’s attachment to its Counterclaim of the document assigning the ownership of the ’669 mark exclusively to THC necessarily establish that the Trinity Iowa Plaintiffs cannot prove “a set of facts ... consistent with the allegations” that the other defendants may own the ’669 mark, even assuming the document can properly be considered on a motion to dismiss. The assignment does not establish beyond dispute that, at any time after its date of execution, March 5, 2001, THC did not assign or convey the ownership of the ’669 mark to another defendant. Although leaving the question of ownership of the ’669 mark for summary judgment may seem like elevating form over substance, particularly where the defendants concede that the “cancellation” claims can be stated against one of them, but only one of them, such a procedure acknowledges precisely the distinction in the Federal Rules of Civil Procedure between accepting allegations in challenged pleadings as true, pursuant to Rule 12(b)(6), to determine whether or not the pleader has a cognizable claim, see, e.g., Scheuer, 416 U.S. at 236, 94 S.Ct. 1683 (the issue on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of its claims); Aceto Agric. Chem. Corp., 872 F.2d at 1376 (same), on the one hand, and examination of record evidence, pursuant to Rule 56, to determine whether or not there is a genuine issue of material fact for trial, see, e.g., Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996) (the trial judge’s function on a motion for summary judgment is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990) (same), on the other. This portion of the Trinity Michigan Defendants’ motion to dismiss counterclaims will be denied under the standards applicable to a Rule 12(b)(6) motion. 3. Failure to plead fraud with particularity a. Arguments of the parties The Trinity Michigan Defendants next challenge the Trinity Iowa Plaintiffs’ second counterclaim on the ground that the counterclaim fails to plead fraudulent procurement of the ’669 mark by the original owner with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. The counterclaim in question asserts that, on the plaintiffs’ information and belief, the original owner of the ’669 mark, Trinity Healthcare Management, Inc., a Tennessee corporation not currently a party to this litigation, was aware that third parties had superior rights to the mark, but failed to disclose that fact to the Patent and Trademark Office (PTO), and that the applicant knew that its listing of the services it intended to provide under the mark as “healthcare services” was overbroad and misleading. The Trinity Michigan Defendants contend that the allegations of fraud are merely conclusory, without description of the circumstances of the fraud, including time, place, and contents of the false representations, the identity of the person making the misrepresentations, and what was obtained as a result of the misrepresentations. More specifically, the Trinity Michigan Defendants contend that there is no identification of the purported “third parties” with superior rights that the applicant failed to disclose, nor any explanation of the manner in which the description of services as “healthcare services” was overbroad or misleading. Furthermore, the Trinity Michigan Defendants contend that nearly all of the allegations are “on information and belief,” but no basis for such belief is set forth, nor any basis for an assumption that THC, and only THC, knows the details of any misrepresentations to the PTO, where the alleged fraud was committed by the prior owner of the ’669 mark, which is not a party to this litigation. In response, the Trinity Iowa Plaintiffs parse their pleadings to demonstrate the way in which they have pleaded the “circumstances” of the alleged fraud. They also contend that they have been forced to make some allegations on information and belief, because only the defendants or the assignor of the ’669 mark have specific knowledge of the fraudulent events pleaded. They also assert that they have alleged that the applicant for the ’669 mark, the Tennessee corporation, was aware of at least one third party having superior rights to use the registered mark, and that this allegation must be taken as true under the standards applicable to a motion pursuant to Rules 12(b)(6) and 9(b). As to the challenge to their allegations that the designation of services was knowingly over-broad and misleading, the Trinity Iowa Plaintiffs contend that they have adequately pleaded that the applicant overstated the scope of services with which the mark was to be used, and thus committed fraud on the PTO. In reply, the Trinity Michigan Defendants reiterate that the Trinity Iowa Plaintiffs have failed to disclose the sources of their “information and belief’ for their fraud allegations, and thus cannot rely on such allegations. b. Analysis i. Rule 9(b) requirements for pleading fraud. This court has articulated the standards for pleading fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure in several decisions. See Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999) (elements and pleading); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading); Brown v. North Cent., 173 F.R.D. 658, 664-65 (N.D.Iowa 1997) (pleading); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996) (pleading); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). In Wright, this court provided the following brief discussion of these matters, which the court finds is all that is required here: Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make conclusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639 (8th Cir.1995), the Eighth Circuit Court of Appeals explained: Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “ ‘Circumstances’ include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Because one of the main purposes of the rule is to facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud, Greenwood v. Dittmer, 776 F.2d 785, 789 (8th Cir.1985), conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule. In re Flight Transp. Corp. Sec. Litig., 593 F.Supp. 612, 620 (D.Minn.1984). Commercial Property, 61 F.3d at 644; see Roberts, 128 F.3d at 651 (noting that factors a court should examine in determining whether the “circumstances” constituting fraud are stated with particularity under Rule 9(b) “include the time, place, and contents of the alleged fraud; the identity of the person allegedly committing fraud; and what was given up or obtained by the alleged fraud.”). Wright, 114 F.Supp.2d at 832-33. Although the Eighth Circuit Court of Appeals has not specifically applied these requirements to pleading fraudulent procurement of a trademark, other courts have. See, e.g., San Juan Prods., Inc. v. San Juan Pools of Kansas, Inc., 849 F.2d 468, 472 (10th Cir.1988) (finding that the district court appeared to have “overlooked or ignored” Rule 9(b) in its consideration of a claim of fraud in the procurement of a trademark registration, but “fraud in the procurement must be alleged with specificity as required by Rule 9(b), both in federal court and in PTO administrative proceedings”); Gaffrig Perf. Indus., Inc. v. Livorsi Marine, Inc., 2001 WL 709483, *4 (N.D.Ill. June 25, 2001) (applying the specificity require-merits of Rule 9(b) to a claim of fraudulent procurement of a federal trademark registration); see also GMA Accessories, Inc. v. Idea Nuova, Inc., 157 F.Supp.2d 234, 242 (S.D.N.Y.2000) (fraudulent trademark registration pursuant to § 38 of the Lanham Act, 15 U.S.C. § 1120, “like any fraud claim, must comply with the heightened pleading standards of Fed.R.Civ.P. 9(b)”). ii. Pleading of “circumstances” of the fraud. The court finds that the Trinity Iowa Plaintiffs have alleged the “circumstances” of the fraud: They have alleged the time as on or about April 15, 1991, see Counterclaim II, ¶ 35; the place as the application for what became the ’669 mark, see id. at ¶ 35; the content of false representations as declarations that the mark was for “health care services” and that no third party had superior rights in the mark, but that the applicant for the mark was aware of one or more third parties having superior rights to use a similar or identical mark, and that the listing of “health care services” was over-broad and misleading, see id. at ¶¶ 35-37; the identity of the person making the misrepresentation as THC’s predecessor in interest, and more specifically, the president of that entity, see id. at ¶ 35; and what was obtained thereby as the registration of the ’669 mark, see id. at ¶ 42. See Wright, 114 F.Supp.2d at 832 (identifying these as the “circumstances” of the fraud, quoting Commercial Property, 61 F.3d at 644). However, the Trinity Michigan Defendants challenge the fraud allegations on the further ground that they are entirely conclusory or are made only on “information and belief,” without any identification of any factual basis therefor. This contention requires further consideration. iii. Pleading “on information and belief.” As the Eighth Circuit Court of Appeals very recently explained, Our ... case of Parnes v. Gateway 2000, Inc., 122 F.3d 539, 549 (8th Cir.1997), interpreted the particularity requirement of Rule 9(b) to entail pleading of “the who, what, when, where, and how: the first paragraph of any newspaper story.” Id. (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990)). There, we quoted First Circuit authority that an allegation based on information and belief should set forth the source of the information. Id. (quoting Romani v. Shearson Lehman Hutton, 929 F.2d 875, 878 (1st Cir.1991)). This rule was developed as a corollary to the ride that allegations of fraud regarding matters peculiarly within the opposing party’s knoioledge could be based on information and belief, so long as accompanied by a statement of the facts on which the belief was founded. See Luce v. Edelstein, 802 F.2d 49, 54 n. 1 (2d Cir.1986); Harold S. Bloomenthal & Samuel Wolff, Securities and Federal Corporate Law § 16:12 n. 9, 16:25.6 n. 2 (1998). One treatise refers to the rule permitting information and belief pleading as “providing] a road map around Rule 9(b) by asserting allegations based on speculation as to the underlying facts.” Bloom-enthal & Wolff § 16:25.6. The treatise continues that this loophole was aggravated by the provision of Fed.R.Civ.P. 11(b) “under which counsel can attempt to avoid the sanction bullet by certifying that the allegations ‘are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.’ ” Bloomenthal & Wolff § 16:25.6. Since a primary goal of the [Private Securities Litigation] Reform Act [of 1995, P.L. No. 104-67, 109 Stat. 737] was to prevent baseless strike suits, S. Rpt. No. 104-98 at 4, reprinted in 1995 U.S.C.C.A.N. at 683, our practice under Rule 9(b) of requiring disclosure of facts relied on for pleadings based on information and belief should obviously be continued under the Reform Act. Florida State Bd. of Admin. v. Green Tree Fin. Corp., 270 F.3d 645, 668 (8th Cir.2001) (emphasis added). Thus, pursuant to Florida State Board of Administration, a party may plead the circumstances of fraud “upon information and belief,” if the allegations are “regarding matters peculiarly within the opposing party’s knowledge,” and if the allegations of fraud are “accompanied by a statement of the facts on which the belief was founded.” Id. The Trinity Michigan Defendants are correct that the Trinity Iowa Plaintiffs’ allegations of fraud — in particular the allegations of the circumstances of fraud concerning the falsity of the allegedly fraudulent statements and the applicant’s knowledge of falsity — are entirely “on information and belief.” Specifically, the Trinity Iowa Plaintiffs alleged the following in support of their counterclaim of “fraudulent procurement”: 36. On information and belief, at the time of the making of the above-referenced oath, the applicant was aware of one or more third parties having superior rights to use a mark(s) either in the identical form of the mark of U.S. Registration No. 1,783,669 or in such near resemblance thereto as to be likely, when used on or in connection with the goods/service of such other person, to cause confusion, or to cause mistake, or to deceive. 37. On information and belief, at the time of making the above-referenced oath or declaration, the applicant was aware that the listing of the services it intended to provide under the mark as “healthcare services” was overbroad and misleading. Hs sfc ❖ * 40. On information and belief, applicant deliberately failed to provide the withheld or misstated material to the USPTO with the intent to induce the USPTO to approve the application for registration. 41. On information and belief, the USPTO reasonably relied on applicant’s misrepresentation and omissions of fact in approving the application for registration that matured into U.S. Registration No. 1,783,-669. 42. On information and belief, Registration No. 1,783,669 was obtained fraudulently because of knowledge by the applicant of prior uses of confusingly similar marks in the United States which were not disclosed to the USPTO in the application for registration, and that the registration would not have been granted in its present form or at all if such material information had been before the USPTO. Counterclaims to THC’s Counterclaim, Count II at ¶¶ 36-37, 40^12 (emphasis added). To be entitled to plead “on information and belief,” the Eighth Circuit Court of Appeals requires that the allegations be “regarding matters peculiarly within the opposing party’s knowledge,” and that the allegations of fraud be “accompanied by a statement of the facts on which the belief was founded.” Florida State Bd. of Admin., 270 F.3d at 668. While the Trinity Iowa Plaintiffs may or may not satisfy the first of these requirements, they certainly have not satisfied the second, because their Counterclaims are void of any “statement of the facts on which the belief [in the falsity of the alleged misrepresentations] was founded.” Id. Nowhere do the Trinity Iowa Plaintiffs plead a factual basis for an assertion that there were, or that the applicant for the ’669 mark was “aware” that there were, “one or more third parties having superior rights to use a mark(s)” confusingly similar to what became the ’669 mark. See Counterclaim II, ¶ 36. As the defendants point out, nowhere do the Trinity Iowa Plaintiffs identify any such third party. Similarly, nowhere do the Trinity Iowa Plaintiffs plead a factual basis for an assertion that the declaration of intent to use the mark for “health care services” was overbroad and misleading, or that the applicant was “aware” that it was. See id. at ¶ 37. Indeed, in their own Complaint, the Trinity Iowa Plaintiffs allege with no greater specificity that IHS “is a well known health care services corporation, and its affiliates, including THS and TRHS, provide among other products and services, health care services of high quality and widely-known reputation,” and that its own common-law and state-registered “Trinity” and “Trinity Health” marks are “trademarks and trade names to identify health care services, and as marks to distinguish Plaintiffs’ services from health care services of others.” Complaint, ¶ 14 (emphasis added). Thus, while the Trinity Iowa Plaintiffs’ allegations of fraud state the “who, what, where, when, and what was obtained” circumstances of the alleged fraud, as required under Rule 9(b), the allegations of fraud still do not satisfy the requirements of Rule 9(b), because the allegations based “on information and belief’ are not “accompanied by a statement of the facts on which the belief was founded.” Florida State Bd. of Admin., 270 F.3d at 668. That part of the Trinity Michigan Defendants’ motion to dismiss the Trinity Iowa Plaintiffs’ Second Counterclaim, which alleges fraudulent procurement of the registration of the ’669 mark, will be granted for failure to plead fraud with the particularity required by Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure to the extent that the plaintiffs must amend their pleading of fraud, if they can, to satisfy t