
    INTEGRITY MAGNESIA CORPORATION v. MIFFLIN, McCAMBRIDGE COMPANY.
    Civ. A. No. 28958.
    United States District Court E. D. Pennsylvania.
    Oct. 4, 1961.
    John Edward Sheridan, Philadelphia, Pa., for plaintiff.
    A. D. Caesar, Alan Bernstein, Philadelphia, Pa., for defendant.
   GRIM, Judge.

This is an action for infringement of plaintiff's registered trade-mark, in which defendant has filed a counterclaim for a declaratory judgment seeking to cancel the registration of the mark, and other relief.

Plaintiff has moved to strike off the counterclaim on the ground that there is no controversy of a justiciable nature and that the court should not take jurisdiction of the counterclaim since the judgment in the action will obviate the necessity for a declaratory judgment.

There clearly exists a controversy of a justiciable nature since plaintiff’s action is for infringement of plantiff’s trade-mark. The counterclaim for declaratory judgment is merely another aspect of that controversy.

Whether or not the judgment in this action will obviate the necessity for a declaratory judgment, defendant if successful would be entitled to the relief prayed for in the counterclaim, and no grounds exist for striking it off.

Order

And now, October 4, 1961, plaintiff’s motion to strike off defendant’s counterclaim is denied. 
      
      . An essential prerequisite to a declaratory judgment, Ashwander v. T. V. A., 1936, 297 U.S. 288, 325, 56 S.Ct. 466, 80 L.Ed. 688.
     
      
      . Indeed, if defendant does not assert its claim in this action it may lose it. See F.R.Civ.P. 13, 28 U.S.O., which requires the assertion of such claim in this manner.
     