Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V. (247 F. Supp. 3d 76, 2017)

MEMORANDUM OPINION

Granting Plaintiffs’ Motion to Substitute and Join Successor in Interest; Denying Plaintiffs’ Motion to Amend the Judgment; Denying Defendant’s Motion for New Trial; Denying Defendant’s Motion to Amend Findings and to Amend the Judgment; Granting Plaintiffs’ Opposition and Objections to Defendant’s Bill of Costs, Construed as a Motion; Granting in Part and Denying in Part Defendant’s Motion for Leave to File Surreply; Denying Defendant’s Request for Hearing

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This case arises from the long-running dispute between Plaintiffs/Counter-Defendants Paleteria La Michoacana, Inc. and Paleteria La Michoacana (Sub), Inc. (collectively, “PLM”) and Defendant/Counter-Claimant Productos Lácteos Tocumbo S.A. De C.V. (“PROLACTO”). Specifically, this litigation concerns the parties’ rights to use various registered and unregistered trademarks when selling frozen confections in the United States.

After resolving a number of preliminary issues, the Coui-t conducted a bench trial over the course of thirteen days beginning on September 14, 2015 and ending on October 1, 2Q15. On May 27, 2016, the Court issued extensive Findings of Facts and Conclusions of Law resolving the remaining issues in the ease. After trial, the parties filed .a number of post-trial motions. . ,

For the reasons explained more fully below, the Court will grant PLM’s motion to substitute another PLM-related entity as the sole Plaintiff in this action and join that same entity as an additional Counter-Defendant. The Court will also deny each parties’ request to,amend the findings apd judgment and deny PROLACTO’s motion for a new trial. Finally, upon consideration of PROLACTO’s bill of costs and PLM’s opposition, the Court will order both parties to bear their own costs.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Court’s previous Findings of Fact and Conclusions of Law set for the factual and procedural history of this case in detail. See generally Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. DE C.V. (PLM VI), 188 F.Supp.3d 22 (D.D.C. 2016). The Court' assumes the parties’ familiarity with the' background set forth in'its earlier opinion. Nevertheless,' the Court will briefly summarize the facts and procedural posture of this case, as described in the Court’s previous opinion. See id. For clarity, the Court will address the facts relevant to the pending post-trial motions in the context of each of the specific motions.

A. Brief Factual Overview

PLM and PROLACTO are in the business of manufacturing and selling “pale-tas” and other frozen treats. Paletas are a style of ice cream bars and popsicles originating in Mexico that are traditionally made from fruit, spices, and nuts.

PROLACTO is a Mexican company that the Andrade Malfavon family founded in 1992. The Andrade Malfavon family continues to own PROLACTO. The company traces its history to Tocumbo, a city in the Mexican state of Michoacán, in the 1940s, which is the purported origin' of the paleta and the shops, known as “paleterias,” that make and sell them. PROLACTO primarily does business in the United States through licensing agreements with various members of the Andrade Malfavon family who own and operate individual paleterias in certain markets, namely, Florida, Texas, Northern California, and North Carolina. Until relatively recently, PROLACTO did not directly own any paleterias in the United States or otherwise directly sell its products to any consumers in the United States.

PLM traces its history to at least as early as 1991, when two brothers, Mexican immigrants Ignacio Gutierrez and Ruben Gutierrez, began selling paletas out of pushcarts in Northern California using the name “La Michoacana.” That name literally means “the woman from the state of Michoacán” in Spanish. The partnership dissolved in 1999, and Ignacio Gutierrez operated the business as a sole proprietorship for several years before incorporating in California. PLM’s business has grown significantly since its beginnings as a pushcart operation in Northern California. PLM currently manufactures its products in a factory in Modesto, California and distributes its products throughout various parts of the United States. PLM distributes its products to large-scale retailers such as Costco, Wal-Mart, and Walgreens, as well as Hispanic grocery stores such as El Super and Vallarta and a variety of other retail outlets.

Both PLM and PROLACTO use a variety of trademarks when selling their products in the United States. This litigation concerns the dispute between PLM and PROLACTO over the right to use those marks. The parties sharply dispute, among many other things, which of them first used those marks in the United States, and each party accuses the other of engaging in bad faith in a variety of different ways.

B, Brief Procedural History

The procedural history of this matter spans roughly a decade. The Court briefly restates that history here. See also PLM VI, 188 F.Supp.3d at 28 (setting forth pro-eédural history).

1. TTAB Proceedings

This dispute began in earnest in 2007 when PROLACTO filed a petition with the Trademark Trial and Appeal Board (“TTAB”), a body of the United States Patent and Trademark Office (“USPTO”), to cancel PLM’s U.S. Registration No. 3,210,304 for the mark titled “LA INDITA MICHOACANA.” See Pet. Cancellation, TTAB Dkt. 1. On May 20, 2011, the TTAB granted PROLACTO’s petition for cancellation of PLM’s LA INDITA MICHOA-CANA mark, concluding that PROLACTO had established priority of use and likelihood of confusion with respect to several of its asserted, unregistered marks. See generally Productos Lacteos Tocumbo S.A. De C.V. v. Paleteria La Michoacana, Inc., 98 U.S.P.Q.2d 1921 (T.T.A.B. 2011). The TTAB denied PLM’s motion for reconsideration on July 13, 2011. See TTAB Dkt. 115.

2. The Present Action

PLM brought this action pursuant to the Lanham Act, 15 U.S.C. § 1071(b), on September 8, 2011. See Compl., ECF No. 1. The operative Complaint is now the Second Amended Complaint, which was filed on June 11, 2012. See 2d Am. Compl., ECF No. 40. PLM’s Second Amended Complaint alleges four causes of action: Count I seeks reversal of the TTAB’s decision to cancel the registration of PLM’s LA INDITA MICHOACANA mark and denial of PROLACTO’s cancellation petition; Count II seeks a declaration that there is no likelihood of confusion between PLM’s LA INDITA MICHOACANA mark and various marks asserted by PROLAC-TO on the basis of their common usage of the word “MICHOACANA”; Count III alleges that PROLACTO’s use of its Indian Girl mark infringes three of PLM’s registered marks under 15 U.S.C. § 1114, including its LA INDITA MICHOACANA mark; and Count IV seeks to cancel PRO-LACTO’s registration of certain marks containing the name “LA FLOR DE MI-CHOACAN” if a likelihood of confusion is found between those marks and PLM’s marks. See 2d Am. Compl. ¶¶ 42-61.

PROLACTO, in turn, filed seven counterclaims. Specifically, Counterclaim Count I alleges that PLM infringed PROLAC-TO’s registered LA FLOR DE MICHOA-CAN and design mark under 15 U.S.C. § 1114(1); Counterclaim Count II alleges trademark infringement, unfair competition, passing off, false advertising, false association, and false designation in violation of 15 U.S.C. § 1125(a); Counterclaim Count III alleges trademark infringement of the District of Columbia’s common law; Counterclaim Count IV alleges trademark dilution under 15 U.S.C. § 1125(c); and Counterclaim Counts V, VI, and VII seek cancellation of two of PLM’s registered marks due to fraud and abandonment. See Ans. 2d Am. Compl. & Countercls. ¶¶ 39-87, ECF No. 41.

The parties filed cross-motions for summary judgment after the close of discovery and the Court granted in part and denied in part both motions. See generally Palete- ria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V. (PLM IV), 69 F.Supp.3d 175 (D.D.C. 2014). The Court then granted in part and denied in part PLM’s motion to revise that Memorandum Opinion and Order, see Mem. & Order, ECF No. 174, and denied PROLACTO’s motion for reconsideration, see Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V. (PLM V), 79 F.Supp. 3d 60 (D.D.C. 2015). The Court issued a First Revised Order on' February 3, 2015. See First Revised Order, ECF No. 175.

The Court’s Findings of Fact and Conclusions of law set forth in detail which claims and counterclaims survived summary judgment. See PLM VI, 188 F.Supp.3d at 30. In brief, the Court denied summary judgment to both parties on Count I of PLM’s Second Amended Complaint and neither party sought summary judgment on Counts II, III, and IV. Id. Turning to PROLACTO’s counterclaims, the Court granted summary judgment in favor of PLM on Counterclaim Counts I, III, IV, V, VI, and VII. Id. at 30-31. With regard to the claims under trademark infringement, false designation of origin, passing off, and unfair competition in Counterclaim Count II, the Court entered partial judgment in favor of PLM limiting this claim to the Houston, Texas market and denied summary judgment to both parties as to whether PROLACTO has established secondary meaning for its marks. Id. at 30. The Court also resolved a number of issues related to the false advertising claims found in Counterclaim Count II, but left others to be resolved at trial. Id. at 30-31.

After the Court narrowed the issues through summary judgment, the case proceeded to trial. The bench trial took place over thirteen days between September 14, 2015 and October 1, 2015. After considering the parties proposed findings of fact and conclusions of law, as well as other motions filed during or after the trial, the Court issued its extensive Findings of Fact and Conclusions of Law. See generally PLM VI, 188 F.Supp.3d 22. In brief, the Court entered judgment in favor of PRO-LACTO as to Count I of PLM’s Second Amended Complaint and entered judgment in favor of PLM as to Counts II and III. The Court dismissed Count VI as moot. Finally, the Court entered judgment in favor of PLM as to PROLACTO’s Counterclaim Count II.

3. Motions Pending Before the Court

After the trial, but shortly before the Court issued its Findings of Fact and Conclusions of Law, PLM filed a motion to substitute a PLM-related entity as the sole Plaintiff and to add that entity as an additional Counter-Defendant because of the transfer of the marks at issue in this'case. See generally Pls.’ Mot. Sub. & Join Successor in Interest (“PLM Mot. Sub.”), ECF No. 336. After the Court issued its Findings of Fact and Conclusions of Law, PLM filed a motion to'alter or amend the Court’s judgment on Complaint Count I that affirmed the cancellation of PLM’s U.S. Registration No. 3,210,304. See generally PLs.’ Mot. Amend J. (“PLM’s Mot. Amend”), ECF No. 340. After briefing on that motion, PROLACTO filed a motion seeking leave to file a surreply to address issues raised in PLM’s reply brief. See Def.’s Mot. Leave File Surreply or, in the Alternative, Mot. Strike (“PROLACTO’s Mot. Surreply”), ECF No. 351. PROLAC-TO filed a motion for a new trial based on the discovery of PLM’s registration and ownership of the domain name “laflordemi-choacan.com,” see generally Def.’s Mot. New Trial (“PROLACTO’s Mot. New Trial”), ECF No. 345, and a motion to amend the Court’s findings and legal conclusions with regard to the incontestability of PLM’s Indian Girl Design marks, see gen erally Def.’s Mot. Amend Findings & Amend J. (“PROLACTO’s Mot. Amend”), ECF No. 346. PROLACTO also filed a bill of costs, see generally PROLACTO’s Bill of Costs, ECF No. 343, which PLM objected to, see generally Pls.’ Opp’n & Objs. Def.’s Bill of Costs (“PLM’s Opp’n Bill of Costs”), ECF No. 350.

After the close of briefing on its. motion for a new trial and its motion to amend, PROLACTO requested a hearing to address the pending motions. See Def.’s Req. Hr’g, ECF No. 358. PROLACTO argues that “oral argument may assist the Court in evaluating PROLACTO’s” motions. Def.’s Req. Hr’g ¶ 9. PLM responds that it “do[esj not believe that a hearing is necessary.” See Pls.’ Resp. Def.’s Req. Hr’g .at 1-2, ECF No. 359. Nevertheless, PLM requests that the Court also hear oral argument on PLM’s motion to amend if it decides to grant a . hearing. See Pls.’ Resp. Def,’s Req. Hr’g at 1-2. The allowance of oral argument is “within the discretion of the Court.” See LCvR 7(f). The Court finds that .there is no need for oral argument on the motions. The parties have briefed the pending motions extensively and the written arguments provide a sufficient basis for the Court to rule. The Court therefore denies PROLACTO’s request for a hearing.

III. PLM’S MOTION TO SUBSTITUTE PARTIES

The Court first turns to PLM’s motion pursuant to Federal Rule of Civil' Procedure 25(c) to substitute PLM Operations, LLC (“PLM Operations”) as the sole Plaintiff and to join that entity as an additional Counter-Defendant. See generally PLM Mot. Sub. PROLACTO opposes the motion to substitute and join PLM Operations. See generally Def.’s Opp’n Pls.’ Mot, Sub. & Join Successor in Interest (“PRO-LACTO’s Opp’n Mot. Sub.”), ECF No. 341. For the reasons set forth below, the Court will grant PLM’s motion, substitute PLM Operations as the sole Plaintiff, and join the same entity as an additional Counter-Defendant.

A. Legal Standard

Federal Rule of Civil Procedure 25(c) provides that, “[i]f an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party.” Fed. R. Civ. P. 25(c). The decision to grant or deny a Rule 25(c) motion is a matter within the district court’s discretion. See Burka v. Aetna Life Ins. Co., 87 F.3d 478, 482 (D.C. Cir. 1996); see also Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir. 1988) (“[O]rders [granting Rule 25(c) substitution] are reviewed only for abuse of discretion.”), cert. denied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989); Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1324 (10th Cir. 1978) (“Substitution of a successor in interest or its joinder as an additional party under Rule 25(c) is generally within the sound discretion of the trial court.”).

The primary basis for deciding the motion .is whether substitution would “facilitate the conduct of the litigation.” Comm’ns Imp. Exp., S.A. v. Republic of Congo, 118 F.Supp.3d 220, 231 (D.D.C. 2015) (quoting Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 32 (1st Cir. 2004)); see also 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016) (noting the trial court’s discretion). This focus on “considerations of convenience and economy ... prevails because Rule 25(c) has no bearing on the substantive relationship between the parties.” Comm’ns Imp. Exp., 118 F.Supp.3d at 231. Regardless of the transfer in interest and subsequent substitution, “[t]he merits of the case ... are still determined vis-á-vis the originally named parties.” Minn. Mining & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1263 (Fed. Cir. 1985); see also In re Covington Grain Co., Inc., 638 F.2d 1362, 1364 (5th Cir. 1981) (“Rule 25(c) is not designed to create new relationships among parties to a suit but is designed to allow the action to continue unabated when an interest in the lawsuit changes hands.”).

Rule 25(c) places no time limit on a party seeking substitution or joinder. See Fed. R. Civ. P. 25(c); see also Luxliner P.L. Exp., Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 71 (3d Cir. 1993); 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016) (“Since Rule 25(e) is wholly permissive there is no time limit on moving to substitute under its provisions.”).

B. Analysis

Pursuant to Federal Rule of Civil Procedure 25(c), PLM has moved to substitute PLM Operations as the sole Plaintiff and to join that entity as an additional Counter-Defendant. See generally PLM Mot. Sub. PLM argues that PLM (Sub) transferred the marks at issue in this case to PLM Operations on April 1, 2016. PLM Mot. Sub at 2. Thus, PLM argues, PLM Operations became the real party in interest and the Court should substitute PLM Operations as the sole Plaintiff. PLM Mot. Sub at 2. To avoid any prejudice to PRO-LACTO, PLM states that PLM Operations volunteers to join the case as an additional Counter-Defendant. PLM Mot. Sub at 2.

PROLACTO opposes the motion to substitute and join PLM Operations. See generally PROLACTO’s Opp’n Mot. Sub. PROLACTO argues that a purported successor in interest must show, not only a valid transfer of interest, but also “that the successor will be liable for any wrongs of its predecessor.” PROLACTO’s Opp’n Mot. Sub at 1. PROLACTO argues that PLM has not shown that “PLM Operations has acquired the liabilities of PLM (Sub).” PROLACTO’s Opp’n Mot. Sub at 2. PROLACTO states that the Court should permit limited discovery on the purported transfer of the relevant marks and hold an evidentiary hearing. PRO-LACTO’s Opp’n Mot. Sub at 2. In the alternative, PROLACTO argues that the Court should deny the motion. PROLAC-TO’s Opp’n Mot. Sub at 2.

1. The Transfer of the Relevant Marks

Before trial, PLM filed a motion pursuant to Rule 15 of the Federal Rules of Civil Procedure seeking leave to correct the caption in this case. Specifically, PLM requested leave to correct the case caption to replace “Paleteria La Michoacana, LLC” as a Plaintiff and Counter-Defendant with “Paleteria La Michoacana (Sub), Inc.” in order to reflect a change in its corporate form. See Pis.’ Mot. Leave Correct Case Caption, ECF No. 210. The Court granted that motion on March 31, 2016. See Mem. & Order, ECF No. 333.

The following day, PLM (Sub) sold “substantially all of its assets” to PLM Operations, which is a limited liability company organized under the laws of the state of Delaware. See PLM Mot. Sub. at 3; see also PLM Mot. Sub., Deck of Robert J. Spigner (“Spigner Decl.”) ¶¶ 2-3, ECF No. 336-1; Spigner Deck, Ex. A (providing the State of Delaware Certificate of Formation and a copy of the Delaware Secretary of State’s website listing relevant details of PLM Operations). PLM has provided the Bill of Sale, General Assignment and Conveyance, which sets forth the details of the transaction. See Spigner Deck, Ex. B. The transferred assets included the marks at issue in this case, including U.S. Registration Numbers 2,905,172, 2,968,652, and 3,210,304. See Spigner Deck ¶ 3; see also Spigner Deck, Ex. B, schd. 1, annex D.

Also on April 1, 2016, PLM (Sub) and PLM Operations executed a Trademark Assignment Agreement memorializing the transfer of the marks. See Spigner Deck ¶ 4; see also Spigner Decl., Ex. C (Trademark Assignment Agreement). PLM has recorded that agreement with the USPTO. See Spigner Decl. ¶4. According to the terms of the agreement, PLM (Sub) assigned and transferred to PLM Operations “all of Assignor’s right, title and interest in and to the Trademarks, together with all goodwill associated with said Trademarks, and the right to sue and recover for, and the right to profits or damages due or accrued, arising out of or in connection with any and all past, present or future infringements or dilution of or damage to the Trademarks or the associated goodwill.” Spigner Ex. C at 20. PLM has also provided copies of entries on the USPTO’s website that reflect PLM Operations as the listed owner of the relevant marks. See Spigner Decl. ¶ 5; see also Spigner Deck, Ex. D,

As PLM correctly states, federal registration of a trademark is prima facie evidence that the registrant is the proper owner of that trademark. See 15 U.S.C. § 1057(b) (“A certificate of registration of a mark ... shall be prima facie evidence ... of the owner’s ownership of the mark.”); see also id. § 1057(d) (noting that a certificate of registration may be issued to the assignee of the application, “but the assignment must first be recorded in the [USPTO] ”).

PROLACTO has not presented any evidence undermining the Spigner affidavit or the documentary evidence put forth by PLM. In fact, PROLACTO appears to acknowledge that PLM “may have shown that certain of the relevant interests have been transferred.” PROLACTO’s Opp’n Mot. Sub. at 10. In light of the extensive documentary evidence of a transfer and the prima facie validity of the registration in the name of PLM Operations, the Court finds that PLM (Sub) transferred the marks at issue in this case to PLM Operations.

2. PROLACTO’s Reliance on the Doctrine of Successor Liability

Instead of focusing on the transfer of assets, including the relevant marks, PROLACTO argues that PLM has “not provided any, much less sufficient, evidence that PLM Operations has acquired the liabilities of PLM (Sub).” PROLAC-TO’s Opp’n Mot. Sub. at 2 (emphasis added); see also PROLACTO’s Opp’n Mot. Sub. at 1 (“[T]he Court must determine that the successor will be liable for any wrongs of its predecessor.”). PROLACTO urges the Court to rely on the doctrine of successor liability to determine whether PLM (Sub) has transferred a valid interest to PLM Operations for the purposes of Rule 25. PROLACTO’s Opp’n Mot. Sub. at 7. Successor liability is an exception to the general rule that “a successor corporation is not liable for the wrongs of its predecessor.” Material Supply Int’l, Inc. v. Sunmatch Indus. Co., Ltd., 62 F.Supp.2d 13, 23 (D.D.C. 1999). Under the four traditional exceptions, a successor corporation will be liable where: “(1) there is an express or implied agreement to assume the liabilities; (2) the transaction amounts to a consolidation or merger; (3) the successor entity is a mere continuation or reincarnation of the predecessor entity; or (4) the transaction was fraudulent, not made in good faith, or made without sufficient consideration.” Id. (quoting Bingham v. Goldberg, Marchesano, 637 A.2d 81, 89-90 (D.C. 1994)).

PROLACTO’s reliance on successor liability is misplaced. Rule 25(c) asks simply whether an “interest is transferred.” Fed. R. Civ. P. 25(c). PROLACTO’s confusion appears to arise from cases where a party seeks to use Rule 25(c) to force an unwilling entity into the litigation. For instance, PROLACTO cites Select Creations, Inc. v. Paliafito America, Inc., 852 F.Supp. 740 (E.D. Wis. 1994) and Panther Pumps & Equipment Co. v. Hydrocraft, Inc., 566 F.2d 8 (7th Cir. 1977) for the principle that the court must consider the substantive law of successor liability before approving a substitution. See PROLACTO’s Opp’n Mot. Sub. at 7. In both cases, however, the court considered successor liability only because a party was attempting to bring an unwilling successor before the court. See Select Creations, 852 F.Supp. at 766 (granting a motion to substitute unwilling non-parties); Panther Pumps, 566 F.2d at 28 (approving substitution of unwilling party).

This case does not fit that pattern. Instead, PLM Operations is volunteering to join the case, both as the sole Plaintiff and as an additional Counter-Defendant. See PLM Mot. Sub. at 6. This distinction is longstanding. For instance, in McComb v. Row River Lumber Co., which PROLACTO cites in its brief, the Ninth Circuit refused to bring an unwilling defendant into the case. 177 F.2d 129, 130 (9th Cir. 1949). The court explained that it had allowed substitutions “in cases where the plaintiff below has transferred his interest in the subject matter of the action,” but that, “where substitution is sought in this court for a defendant below ... we have declined to allow a substitution.” Id.

This distinction, found in other cases, reflects the due process concerns raised by forcing a party to step into the shoes of another against their will, perhaps even after a court has entered a judgment. See, e.g., Luxliner P.L. Exp., Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993) (considering third party’s due process interests); Panther Pumps, 566 F.2d at 24 (same). Those fairness concerns are not at issue in a case like this, where a plaintiff has transferred an interest in the case and voluntarily seeks substitution. See, e.g., Burka v. Aetna Life Ins. Co., 87 F.3d 478, 480 (D.C. Cir. 1996) (making no mention of successor liability or due process where all parties agreed that a third party should be a party to the suit). Because PLM Operations seeks to join this action voluntarily, the Court’s analysis must focus on whether “an interest is transferred,” Fed. R. Civ. P. 25(c), not whether that interest comes with liabilities attached.

3. Substitution and Joinder Will Facilitate Litigation

The proper criteria for deciding a motion under Rule 25(c) is whether substitution would “facilitate the . conduct of the litigation.” Comm’ns Imp. Exp., S.A. v. Republic of Congo, 118 F.Supp.3d 220, 231 (D.D.C. 2015) (quoting Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 32 (1st Cir. 2004)); see also 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016) (“An order, of joinder is merely a discretionary determination by the trial court that the transferee’s presence would facilitate the conduct of the litigation.”). Any substitution or joinder under Rule 25(c) does not change the substance of the litigation, but simply allows the case to go forward when an interest changes hands, See In re Covington Grain Co., Inc., 638 F.2d 1362, 1364 (5th Cir. 1981). The Court finds that substitution is appropriate here.

The relevant marks are undoubtedly at thq core of this long-running litigation. For example, Count -I of PLM’s Second Amended Complaint seeks reversal of the TTAB decision cancelling one of the transferred marks. See 2d Am. Compl. ¶¶42-48. Similarly, Counts II and III seek a declaratory judgment of noninfringement and injunctive relief to stop ongoing infringement, respectively, related to the transferred marks. See 2d Am, Compl. ¶¶ 49-51, 52-56. The Court has found that uncontested evidence shows that PLM (Sub) transferred the relevant marks to PLM Operations. See supra Part. III.B.l. Although the rights of PLM Operations, if substituted, are the same as the original Plaintiffs, it now owns the relevant marks and has the sole interest in the outcome of this litigation. See Crown Point Partners LLC v. Crown Point Plan Comm’n, 275 F.R.D. 279, 282 (N.D. Ind. 2011) (“First Financial, as a creditor-and transferee, in interest to the property, has a protectable interest in the' outcome of this litigation and should be substituted, although its rights do not exceed those of Lauth and CPP in this litigation.”). Therefore, the Court finds that substituting the owner of the relevant marks as the sole Plaintiff will best facilitate any ongoing litigation.

PLM also volunteered to join PLM Operations as an additional Counter-Defendant to address any possible prejudice to PROLACTO. See PLM Mot. Sub. at 2. Following PROLACTO’s opposition to PLM’s motion for substitution, PLM “withdraw] that portion of its Motion seeking to add PLM Operations as an additional counter-defendant,” but nevertheless “does not object if the Court joins PLM operations as an additional counter-defendant.” Pl.’s Reply Supp. Mot. Sub. (“PLM’s Reply Mot. Sub.”) at 15-16, ECF No. 342 (emphasis added). Rule 25(c) permits the Court to substitute. or join a party. See Fed. R. Civ. P. 25(c). In order to avoid any possibility of prejudice, the Court will therefore exercise its discretion to .join PLM Operations as an additional Counter-Defendant, as well as substituting it as the sole Plaintiff.

4, PROLACTO’s Request for Discovery and a Hearing

Finally, the Court turns to PRO-LACTO’s request for discovery and a formal hearing on PLM’s motion to substitute PLM Operations. PROLACTO argues that “[limited discovery may better enable the Court to make an informed determination of whether PLM (Sub) has made a valid transfer of interest to PLM Operations and to avoid an inequitable outcome to PROLACTO.” PROLACTO’s Opp’n Mot. Sub. at 11. PROLACTO also requests a hearing on this issue. PROLACTO’s Opp’n Mot. Sub. at 11.

First, the Court has found that the uncontested evidence is sufficient to show that PLM (Sub) transferred the relevant trademarks to PLM Operations. See swpra Part III.B.l. Second, the Court’s decision to join PLM- Operations as an additional Counter-Defendant ensures that the substitution will avoid inequitable outcomes for PROLACTO. See supra Part III.B.3. Finally, the Court notes that there is no requirement to grant limited discovery or a hearing in this context. The Seventh Circuit recently noted that there is no rule “that an evidentiary hearing is mandatory to resolve every Rule 25(c) substitution.” Sullivan v. Running Waters Irrigation, Inc., 739 F.3d 354, 359 (7th Cir. 2014). In fact, courts that have required an eviden-tiary hearing often point to the due process concerns raised by hailing an unwilling party into the action, particularly where substitution effectively imposes liability. See Luxliner P.L. Exp., 13 F.3d at 72. That is not the case here, and the Court therefore denies PROLACTO’s request for limited discovery and a hearing.

IV. THE PARTIES’ MOTIONS TO AMEND THE FINDINGS AND JUDGMENT

Following the bench trial, post-trial briefing, and the Court’s release of its Findings of Fact and Conclusions of. Law, both parties have filed motions to amend the Court’s judgment. Each of the motions raises legal arguments for the first time in this litigation. Therefore, the Court will deny both motions.

A. Legal Standards

1. Federal Rule of Civil Procedure 52(b)

Pursuant to Federal Rule of Civil Procedure 52(b), a party may file a motion requesting that the Court “amend its findings—or make additional findings— and ... amend the judgment accordingly.” Fed. R. Civ. P 52(b). This Rule “permit's the trial court to correct manifest errors of law or fact, make additional findings or take other action that is in the interests of justice.” Ashraf-Hassan v. Embassy of France, 185 F.Supp.3d 94, 108 (D.D.C. 2016) (quoting Bigwood v. Def. Intelligence Agency, 770 F.Supp.2d 315, 318 n.2 (D.D.C. 2011)). The decision to amend findings or the judgment is committed “to the sound discretion of the trial judge.” See Material Supply Int’l, Inc. v. Sunmatch Indus. Co., No. 94-1184, 1997 WL 243223, at *2 (D.D.C. May 7, 1997); see also Ashraf-Hassan, 185 F.Supp.3d at 108. And a party bringing a Rule 52(b) motion “bears a heavy burden.” Ashraf-Hassan, 185 F.Supp.3d at 108 (quoting Material Supply Int’l, 1997 WL 243223, at *2).

A motion under Rule 52(b) “is not an avenue for relitigating issues upon which the moving party did not prevail at trial.” Material Supply Int’l, 1997 WL 243223, at *2. Instead, a movant “who failed to prove his [or her] strongest case is not entitled to a second opportunity to litigate a point, to present evidence that was available but not previously offered, or to advance new theories by moving to amend a particular finding of fact or conclusion of law,” Salazar v. District of Columbia, 685 F.Supp.2d 72, 75 (D.D.C. 2010) (quoting 9C Charles Wright & Arthur Miller, Federal Practice & Procedure § 2582 (3d ed. 2009)); see also Diocese of Winona v. Interstate Fire & Cas. Co., 89 F.3d 1386, 1397 (8th Cir. 1996) (finding that a party could not use a 52(b) motion to raise an argument that could have been raised prior to the entry of a judgment); Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986) (explaining that a Rule 52(b) motion should not be employed “to advance new theories”).

2. Federal Rule of Civil Procedure 59(e)

Federal Rule of Civil Procedure 59(e) permits a party to file “[a] motion to alter or amend a judgment” within “28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “Reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly,” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (3d ed. 2012)), and the moving party bears the burden of establishing “extraordinary circumstances” warranting relief from judgment, Niedermeier v. Office of Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001).

Ultimately, “[a] Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). “New evidence” is evidence that “was not previously available,” not simply evidence that a party had not previously presented. See Messina v. Krakower, 439 F.3d 755, 759 (D.C. Cir. 2006). And in the Rule 59(e) context, “clear error” is “a very exacting standard,” Bond v. U.S. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012) (quoting Lightfoot v. District of Columbia, 355 F.Supp.2d 414, 422 (D.D.C. 2005)), tantamount to a requirement that the judgment be “dead wrong,” Lardner v. FBI, 875 F.Supp.2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). “Manifest injustice,” on the other hand, requires a demonstration not only of “clear and certain prejudice to the moving party, but also a result that is fundamentally unfair in light of governing law.” Slate v. Am. Broad. Cos., Inc., 12 F.Supp.3d 30, 35-36 (D.D.C. 2013).

Crucially, Rule 59(e) does not permit a dissatisfied party “to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (2d ed. 1995)). The rationale for this rule is that “Rule 59(e) motions are aimed at reconsideration, not initial consideration.” GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d 805, 812 (D.C. Cir. 2012) (quoting District of Columbia v. Doe, 611 F.3d 888, 896 (D.C. Cir. 2010)). “It is well settled that an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised.” Doe, 611 F.3d at 896 (quoting Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999)); see also Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012) (“Rule 59(e) is not a vehicle to present a new legal theory that was available prior to judgment....”). “The strictness with which such motions are viewed is justified by the need to protect both the integrity of the adversarial process in which parties are expected to bring all arguments before the court, and the ability of the parties and others to rely on the finality of judgments.” U.S. Commodity Futures Trading Comm’n v. McGraw-Hill Cos., 403 F.Supp.2d 34, 36 (D.D.C. 2005).

B. PLM’s Motion to Amend the Judgment

PLM has moved to amend the judgment, arguing that PLM’s U.S. Registration No. 3,210,304 for LA INDITA MI-CHOACANA should not be cancelled. See generally PLM’s Mot. Amend. Specifically, PLM refers to the Court’s finding that PLM owns two prior incontestable registered marks incorporating an Indian Girl design and argues that “a registered mark cannot be cancelled if the registrant, PLM, has prior use of a mark that is likely to cause confusion with the mark asserted by the challenger, PROLACTO.” PLM’s Mot. Amend at 4. In its reply, PLM clarifies that it believes PROLACTO does not have standing to challenge the LA INDI-TA MICHOACANA mark because “PRO-LACTO cannot show that it would be damaged where ... the registrant, PLM, has one or more valid registrations for similar marks on similar goods that were in existence before PROLACTO sought cancellation.” See Pis.’ Reply Supp, Mot. Amend J. (“PLM’s Reply Supp. Mot. Amend”) at 1, ECF No. 349. PROLACTO raises a number of responses, including arguments that PLM has not established the extraordinary circumstances that are necessary to amend a judgment, that PLM’s understanding of the law is flawed, and that PLM’s prior marks are not incontestable. See id. at 3-14.

The Court first turns to PROLACTO’s motion seeking leave to file a surreply. See generally PROLACTO’s Mot. Surreply; see also Def.’s Surreply or, in the Alternative, Mot. Strike (“PROLACTO’s Surre-ply”), ECF No. 351-1. For the reasons stated below, the Court will grant the motion in part and deny it in part. The Court will consider PROLACTO’s surreply only on the question of standing. Upon eonsid-eration of the parties’ arguments, the Court will deny PLM’s motion to amend the judgment because a party cannot raise new theories for the first time in a motion to amend a judgment.

1, PROLACTO’s Motion for Leave to File a Surreply

PROLACTO argues that it should be permitted to file a surreply because PLM impermissibly introduced facts and arguments related to two new arguments in its reply. See PROLACTO’s Mot. Surre-ply at 4, 6-7. After setting forth the standard for granting leave to file a surreply, the Court will address the issues in turn.

Under the Local Rules of this Court, at most three briefs should be associated with a motion: “(i) the movant’s opening memorandum; (ii) the non-mov-ant’s opposition; and (iii) the movant’s reply.” Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C. 2012) (citing LCvR 7). However, the non-movant may seek leave to file a surreply when deprived of the opportunity to contest matters raised for the first time in the movant’s reply. See Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003). The determination as to whether to grant or deny leave is entrusted to the discretion of the district court, see Akers v. Beal Bank, 760 F.Supp.2d 1, 2 (D.D.C. 2011), but surre-plies are generally disfavored, see Kifafi v. Hilton Hotels Retirement Plan, 736 F.Supp.2d 64, 69 (D.D.C. 2010). The court’s discretion is guided by “whether the movant’s reply in fact raises arguments or issues for the first time; whether the nonmovant’s proposed surreply would be helpful to the resolution of the pending motion; and whether the movant would be unduly prejudiced were leave to be granted.” Glass v. Lahood, 786 F.Supp.2d 189, 231 (D.D.C. 2011), aff'd, No. 11-5144, 2011 WL 6759550 (D.C. Cir. Dec. 8, 2011).

First, PROLACTO argues that, “[f]or the first time in its Reply, PLM introduced facts and exhibits related to a blog post by Professor Rebecca Tushnet.” PROLAC-TO’s Mot. Surreply at 6. In its reply in support of the motion to amend, PLM argues that the blog post’s analysis “supports granting PLM’s Motion to amend the judgment on Count I of the Complaint in favor of PLM.” PLM’s Reply Supp. Mot. Amend at 8. PROLACTO argues that a surreply is particularly warranted “in response to newly-introduced factual material.” PROLACTO’s Mot. Surreply at 7.

The Court notes that a grooving number of legal scholars, are turning to blogs and other online media to publish their work and to consider important legal questions. See, e.g., Eugene Volokh, Who are we?, Volokh Conspiracy (Jan. 16, 2014), https:// www.washingtonpost.com/ news/volokh-conspiracy/who-are-we/ (listing law professors who write for the Volokh Conspiracy); About Us, RegBlog, http://www.regblog. org/about-us/ (last visited Mar. 30, 2017) (“RegBlog features work contributed by staff members, scholars, judges, attorneys, and others interested in regulatory developments.”). PLM makes clear that it “does not seek to admit the blog into the .eviden-tiary record, or seek to admit any testimony from Professor Tushnet, whether as a lay or expert witness.” Pl.’s .Opp’n Def.’s Mot. Leave File Surreply or, in the Alternative, Mot. Strike at 4 (“PLM’s Opp’n Mot. Surreply”), ECF No. 355. Therefore, the Court will treat the reference to the blog post the same way it would treat a citation to a law review article. The blog post is not new factual material. Instead, the reference to the blog post simply supports arguments originally raised in the motion, and there is no need for PROLAC-TO to have another chance to respond. See Glass, 786 F.Supp.2d at 231.

Second, PROLACTO argues that PLM raised arguments related to standing for the first time in its reply brief. See PRO-LACTO’s Mot. Surreply at 7. In response, PLM asserts that its original motion briefed the question of standing. See PLM’s Opp’n Mot. Surreply at 6. PLM argues that it “cited to a number of cases on the issue of standing in its motion to amend the judgment, and ... devoted almost half of its motion to argue that PRO-LACTO’s cancellation claim should-be dismissed for lack of standing.” PLM’s Opp’n Mot. Surreply at 5. PLM’s characterization is misleading. In fact, while PLM’s motion to amend argues that “PROLACTO cannot meet its burden of proof to cancel its registration,” the motion never mentions the term “standing.” See PLM’s Mot. Amend at 5. In contrast, nearly five of the eleven pages of argument in PLM’s reply focus specifically on the question of standing. See PLM’s Reply Supp. Mot. Amend 2-6. The Court finds that the standing argument is “truly new,” United States v. Baroid Corp., 346 F.Supp.2d 138, 143 (D.D.C. 2004), and that PROLACTO’s “proposed surreply would be helpful to the resolution of the pending motion,” Glass, 786 F.Supp.2d at 231. Therefore, the Court will grant PROLACTO’s motion in part and consider the surreply to the extent it addresses the issue of standing.

2. The Morehouse Defense .

The thrust of the litigation related to Count I has turned on two crucial issues. First, the parties dispute the relative priority of PLM’s LA INDITA MICHOACA-NA mark and PROLACTO’s unregistered Indian Girl mark. The Court decided that PROLACTO had the better side of that argument, finding that “PROLACTO has demonstrated that it used its Indian Girl mark before PLM used its LA INDITA MICHOACANA mark.” PLM VI, 188 F.Supp.3d 22, 101 (D.D.C. 2016). The parties also dispute whether the tacking doctrine applies and therefore the priority date of PLM’s LA INDITA MICHOACA-NA mark can be advanced to the date that PLM first used any Indian Girl mark. Again, PROLACTO prevailed after the Court found that, “particularly without any evidence of consumers’ perceptions, the Court cannot find that PLM’s LA INDITA MICHOACANA mark meets the ‘exceedingly strict’ standard for tacking.” Id. at 60 (quoting Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1048 (9th Cir. 1999)).

The ultimate result is that PROLAC-TO’s unregistered Indian Girl design is confusingly similar to, and thus infringes, PLM’s earlier, registered Indian- Girl marks, see id. at 107, but, because tacking does not apply, PROLACTO’s mark has priority over LA INDITA MICHOACANA and the registration of LA INDITA MI-CHOACANA must be cancelled. Id. at 101. The Court’s Findings of Fact and Conclusions of Law noted:

In its proposed findings of fact and conclusions of law, PLM argues that “even without applying the tacking doctrine,” it has priority of use for an Indian Girl design, citing its Indian Girl with Paleta mark. Pis.’ Br. at 85 ¶ 90; see also id. at 59 ¶19 (“PLM has priority in both the Indian Girl Design and in ‘Michoacana.’ Thefore [sic], the registration for. LA INDITA MICHOACANA + Design should not be cancelled and PLM should prevail on its First Claim for Relief.”). The Court has indeed found that PLM used its Indian Girl with Paleta and Indian Girl with Cone marks before PROLACTO used its Indian ⅝ Girl mark in the United States, and the Court considers those findings with respect to the infringement claims in this action. With respect to [Count I], however, PLM does not provide the Court with any legal basis to deny PROLACTO’s cancellation petition on the basis of PLM’s earlier use of other marks in the absence of tacking—-even if PLM’s earlier marks are confusingly similar to PROLACTO’s asserted mark. Instead, PLM offers only the conclusive statements quoted above without any citations or further explanation. In the absence of any substantive legal argument, the Court cannot find grounds on its own to consider PLM’s earlier use of other marks outside the context of the tacking doctrine.'

Id. at 100 n.54 (first alteration in original). PLM is now attempting to provide the legal basis to deny PROLACTO’s cancellation petition that it failed to raise before.

In its motion to amend the judgment, PLM asserts that the Court “correctly recited” the legal standard when it found that “a mark cannot be registered if another owner has prior use of a mark or trade - name that is likely to cause confusion with the asserted mark.” PLM’s Mot. Amend at 4 (quoting PLM VI, 188 F.Supp.3d at 99). In the next sentence, PLM reformulates the standard to state that “a registered mark cannot he cancelled if the registrant ... has prior use of a mark that is likely to cause confusion with the mark asserted by the challenger.” PLM’s Mot. Amend at 4. PLM seems to assert that its version of the rule is a direct and accurate translation of the proper cancellation standard the Court articulated. That is not correct. Instead, as PLM’s citations and subsequent reply make clear, PLM is relying on an equitable defense known as the “More-house defense” or the “prior registration” defense.”

Under the Morehouse defense, the party seeking cancellation of a mark cannot be damaged if the registrant already “owns an existing registration for the same or substantially identically mark for the same or substantially identical goods.” 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition (“McCarthy on Trademarks”) § 20:38 (4th ed. 2016). The Morehouse defense “is related to the equitable defenses of laches or acquiescence.” Coach/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 U.S.P.Q.2d 1458, 2014 WL 1390528, at *13 (T.T.A.B. 2014). Summarizing the rule, the Federal Circuit has explained that “[t]he prior registration or Morehouse defense is an equitable defense, to the effect that if the opposer can not be further injured because there already exists an injurious registration, the opposer can not object to an additional registration that does not add to the injury.” O-M Bread, Inc. v. U.S. Olympic Comm., 65 F.3d 933, 938 (Fed. Cir. 1995). The defense is available in both cancellation and opposition proceedings. See McCarthy on Trademarks §§ 20:38, 20:78. PLM has now raised the Morehouse defense in its motion to amend the judgment. See PLM’s Mot. Amend at 5; see also PLM’s Reply Supp. Mot. Amend at 3.

3. Waiver

The question before the Court is whether PLM can rely on the Morehouse defense at this stage of the litigation. As the Court has explained, Rule 59 does not permit a dissatisfied party “to raise arguments ... that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (2d ed. 1995)). Furthermore, “[i]t is well settled that an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised.” District of Columbia v. Doe, 611 F.3d 888, 896 (D.C. Cir. 2010) (quoting Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999)). The strictness of this rule is not arbitrary. The rule “is justified by the need to protect both the integrity of the adversarial process in which parties are expected to bring all arguments before the court, and the ability of the parties and others to rely on the finality of judgments.” U.S. Commodity Futures Trading Comm’n v. McGraw-Hill Cos., 403 F.Supp.2d 34, 36 (D.D.C. 2005).

PLM makes two arguments on this point. First, PLM argues that PROLAC-TO lacks standing to challenge PLM’s registration and that standing arguments are not waivable. See PLM’s Reply Supp. Mot. Amend at 2-6. Second, PLM argues that it has “pleaded and argued standing since inception.” PLM’s Reply Supp. Mot. Amend at 6 n.5. The Court will address these arguments in turn.

a. PLM Conflates Constitutional Standing and Statutory Standing Under the Lanham Act

PLM’s standing argument relies on the Morehouse defense. PLM begins •with the correct proposition that a “party must have standing to challenge a trademark registration.” PLM’s Reply Supp. Mot. Amend at 2 (citing Nobelle.com, LLC v. Qwest Commc’ns Int’l, Inc., 66 U.S.P.Q.2d 1300, 1303 (T.T.A.B. 2003)). The Lanham Act provides that “petition to cancel a registration of a mark ... may ... be filed ... by any person who believes that he is or will be damaged ... by the registration of the mark.” 15 U.S.C. § 1064 (emphasis added). Next, PLM incorporates the Morehouse defense, which states that “the opposer cannot be damaged ... by the issuance to the applicant of a second registration where applicant already has an existing registration of the same mark for the same goods.” Morehouse Mfg. Corp. v. J. Strickland & Co., 407 F.2d 881, 884 (C.C.P.A. 1969) (emphasis added). Up to this point, PLM’s argument is that PROLACTO cannot be damaged by the registration of the LA INDITA MICHOACANA mark, and thus PROLACTO lacks standing. See PLM’s Reply Supp. Mot. Amend at 2-5.

Next, PLM argues that this argument cannot be waived, because “standing is not subject to waiver.” PLM’s Reply Supp. Mot. Amend at 5. As courts of limited jurisdiction, federal courts are “under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (alteration in original) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)). Furthermore, as PLM correctly points out, because standing is a jurisdictional requirement, it “remains open to review at all stages of litigation.” PLM’s Reply Supp. Mot. Amend at 6 (quoting Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)). Thus, PLM concludes that—even at this late stage of the litigation—it can raise the Morehouse defense through the trapdoor of standing.

The problem with PLM’s clever argument is that it incorrectly conflates the constitutional “case or controversy” requirement with the standing requirement found in the Lanham Act. Article III of the United States Copstitution requires the plaintiff to make out a “case or controversy” in order to have standing to sue in federal court. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). PLM relies on this constitutional form of standing when it argues that a court must consider standing arguments at all stages of the litigation and those arguments cannot be waived. See PLM’s Reply Supp. Mot. Amend at 5-6. But the standing requirements to proceed before an administrative agency are not the same. See Ritchie v. Simpson, 170 F.3d 1092, 1094 (Fed. Cir. 1999); Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 729 F.Supp.2d 246, 251 (D.D.C. 2010). Statutory law, not the “case or controversy” requirement, determines the standing requirements for matters brought before an agency. See Ritchie, 170 F.3d at 1095 (collecting cases). A federal court must always be alert to constitutional standing problems because they implicate the court’s jurisdiction. See Hays, 515 U.S. at 742, 115 S.Ct. 2431. But PLM has presented no authority that the Lanham Act’s statutory standing requirement implicates similar jurisdictional concerns.

At any rate, the Court finds that PROLACTO has standing under the generous standard of the Lanham Act. The relevant provision grants standing to any party that “believes that he would be damaged by the registration of a mark.” 15 U.S.C. § 1063. The party must only show-a “real interest” in the proceedings and a “reasonable basis” for his belief of damage. See Ritchie, 170 F.3d at 1095. The requirement for standing is “fairly easy to satisfy in the vast majority of cases.” McCarthy on Trademarks § 20:46. The TTAB had no doubt that PROLACTO had standing. See Productos Lacteos Tocumbo S.A. De. C.V. v. Paleteria La Michoacana, Inc., 98 U.S.P.Q.2d 1921, 2011 WL 2161071, at *8-9 (T.T.A.B. 2011). This Court agrees.

For the purposes of evaluating standing under the Lanham Act, a “real interest” is a “direct and personal stake in the outcome of the” opposition or cancellation. Ritchie, 170 F.3d at 1095. A party must also have a “reasonable basis in fact” for its belief in damages, although a purely subjective belief is insufficient. Id. at 1098 (quoting Universal Oil Prods., Co. v. Rexall Drug & Chem. Co., 463 F.2d 1122 (C.C.P.A. 1972)). In light of the competing, confusing marks at issue and the fact that PLM and PROLACTO are direct competitors, PROLACTO has a “direct and personal stake” in the outcome of the cancellation and a “reasonable basis in fact” that it could be damaged. Cf. Guantanamera Cigar Co., 729 F.Supp.2d at 252 (“Given the global economy, it seems fairly obvious that Habanos’ mark is more valuable if no one owns the GUANTANAMERA mark in the U.S., even if Habanos does not.”).

Furthermore, to the extent constitutional standing is relevant here, the analysis turns on PLM’s standing; not PROLACTO’s. The Supreme Court has made clear that the plaintiff bears the burden of-establishing standing. See DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 342 n.3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). The constitutional standing' analysis considers whether the plaintiff has experienced an injury that is fairly traceable' to the defendant and re-dressable by the court, See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Furthermore, the plaintiff must demonstrate standing for each separate claim. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). As the Plaintiff in this action, PLM, not PROLACTO, brought 'Count I seeking reversal of the TTAB decision. See 2d Am. Compl. ¶¶ 42-48. Therefore, any constitutional standing inquiry would examine PLM, not PRO-LACTO.

Thus, the Court concludes that the Morehouse defense does not implicate constitutional standing in this case. Therefore, the Court rejects PLM’s argument that the Morehouse defense cannot be waived because it raises standing concerns. To the contrary, a party’s litigation conduct can generally waive affirmative defenses, including equitable defenses. See Jones v. D.C. Dep’t of Corr., 429 F.3d 276, 280 (D.C. Cir. 2005) (“We conclude the district court erred in granting summary judgment based on the Faragher-Ellerth defense in a case in which the defense had not been raised in the pleadings.”); Dole v. Williams Enterprises, Inc., 876 F.2d 186, 189 (D.C. Cir. 1989) (footnote omitted) (“[0]ur understanding of affirmative defenses, buttressed by years of experience under Rule 8(c) ..., is that these defenses place the burden on the party raising them to affirmatively plead the claim....”); Ruffin v. New Destination, 800 F.Supp.2d 262, 268 (D.D.C. 2011) (“Defendants did not raise this affirmative defense in their answer, and therefore it is waived.”); see also Fed. R. Civ. P. 8(c) (requiring the pleading of affirmative defenses). For PLM to rely on the Morehouse defense at this late stage in the litigation, it must demonstrate that it has preserved the issue by raising the argument at the proper time.

b. PLM has not Preserved an Argument Relying on the Morehouse Defense

PLM argues that it “never waived any argument as to standing; rather, PLM has pleaded and argued standing since inception.” PLM’s Reply Supp. Mot. Amend at 6 n.5. This again misstates the argument that is subject to waiver. As the Court has previously explained, PLM is now seeking to rely on the Morehouse defense, an equitable defense, not standing, which is an element of a petitioner’s claim that guarantees that the party has'a minimum, threshold interest in cancelling or opposing a registration. See supra Part IV.B.2-3.a. Thus, the Court will review the extensive record in this litigation, as well as consider instances where PLM claims it “pleaded and argued” standing, to determine whether PLM raised the Morehouse defense at those times.

The parties’ briefs related to a motion in limine contain the most significant discussion of the Morehouse defense in this litigation. Before trial, PROLACTO filed a motion to prevent PLM from raising tacking arguments. See Def.’s Mot. In Limine & Supp. Mem. Exclude Any “Tacking” Arguments (“PROLACTO’s Tacking MIL”), ECF No. 186. PROLACTO’s motion incorrectly conflated tracking with the More-house defense. PROLACTO’s Tacking MIL at 7. In response, PLM more accurately laid out the parameters of the More-house defense, as well as its differences from tacking. See Pis.’ Opp’n Def.’s Mot. In Limine Exclude Any “Tacking” Arguments (“PLM’s Opp’n Tacking MIL”) at 5, EOF No. 192.

At that time, PLM also argued that the “Morehouse defense is entirely irrelevant to PROLACTO’s counterclaims and therefore, PLM did not have any obligation to plead it in its Answer in this district court action.” PLM’s Opp’n Tacking MIL at 6. However, PLM also argued that it did raise the Morehouse defense at the TTAB and contended that the TTAB reached the wrong result when it determined that PLM had not pleaded the defense. See PLM’s Opp’n Tacking MIL at 6; see also Productos Ladeos Tocumbo, 98 U.S.P.Q.2d 1921, 2011 WL 2161071, at *5 (finding that PLM did not plead the More-house defense). In support of that conclusion, PLM points to its Answer in the TTAB proceedings, which states that “[PLM] alleges [PROLACTO] is not likely to be damaged by Registrant’s mark, and therefore, lacks standing to cancel the registration of the same.” PLM’s Opp’n Tacking MIL, Ex. A at 5, ECF No. 192-1.

The Court is not convinced that this discussion preserves PLM’s ability to rely on the Morehouse defense. First, PLM explicitly argued that it “had no obligation or opportunity to plead the Morehouse ‘prior registration’ in this district court action.” PLM’s Opp’n Tacking MIL at 5. Second, the Court notes that the Answer PLM filed in the TTAB action contains a general defense that does not reference PLM’s prior registration of its two Indian Girl marks or the Morehouse defense in general. Third, the discussion appears in the context of PLM’s opposition to one of PROLACTO’s motions in limine. PLM had many opportunities to raise this issue in its motion for summary judgment, at trial, or in its post-trial briefing. But PLM never raised the issue in any developed way.

For instance, PLM contends that it preserved this argument by raising it in one of the footnotes in its post-trial brief. See PLM’s Reply Supp. Mot. Amend at 6 n.5. The relevant portion of that footnote states:

After receiving the Office Action [refusing registration of its Indian Girl design], PROLACTO did not oppose or otherwise seek to prevent registration of PLM’s then-pending application for LA INDITA MICHOACANA and Design, or seek to cancel PLM’s two registered marks. This fact weighs in favor of concluding that PROLACTO acquiesced to the registration of PLM’s “LA INDITA MICHOACANA + Design” mark, and also demonstrates PROLACTO’s delay in asserting its rights such that PRO-LACTO’s claims should be barred under the doctrine of laches, as explained further below.

See PL’s. [Proposed] Findings of Fact and Conclusions of Law (“PLM’s Post-Trial Brief’) ¶ 112 n.S9, ECF No. 309. The footnote mentions acquiescence and PLM’s two registered marks, but it provides no citation to authority or structured legal argument. The footnote appears in a section of the brief dedicated to the separate issue of estoppel. See PLM’s Post-Trial Brief ¶¶ 111-26. In fact, PLM’s proposed findings of fact and conclusions of law total more than 120 pages, but PLM can only point to a single, unsupported sentence