Nfinity IP, LLC

Trademark Trial and Appeal Board

Oct 3, 2017

No. 86905311 (T.T.A.B. Oct. 3, 2017)

Mailed: October 3, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Nfinity IP, LLC
_____

Serial No. 86905311
_____

Todd Deveau of Thomas|Horstemeyer LLP
for Nfinity IP, LLC.
Jeanine Gagliardi, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Wellington, Wolfson and Goodman,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Nfinity IP, LLC (“Applicant”) seeks registration on the Principal Register of the
standard character mark NFINITY FLEX (“Flex” disclaimed) for “athletic clothing
for cheerleading, namely, shirts, jackets, pants, and shorts” in International Class
25.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(d); 15 U.S.C. § 1052(d), based on Reg. No. 4191373

1 Application Serial No. 86905311 was filed on February 11, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of its bona fide intent
to use the mark in commerce.
This Opinion is not a
Precedent of the TTAB
Serial No. 86905311

- 2 -
for the standard character mark CALVIN KLEIN INFINITY FLEX (“Flex”
disclaimed) for:
Intimate apparel and figure enhancing garments, namely,
bras, panties, underwear, underpants, undergarments,
underclothes, teddies, slips, sarongs, negligees, lingerie,
foundation garments, girdles, corsets, camisoles, body slips
and body suits, sleepwear and nightgowns
in International Class 25.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board and filed a request for reconsideration. The request for
reconsideration was denied, following which proceedings were resumed. Applicant
and the Examining Attorney filed briefs, and Applicant filed a reply brief. We affirm
the refusal to register.
Evidentiary Matter

The Examining Attorney has objected to the introduction of evidence attached to
Applicant’s brief that was not previously made of record. Trademark Rule 2.142(d)
provides that the record in an application must be complete prior to the filing of an
appeal;3 the Board will ordinarily not consider additional evidence filed with the
Board after the appeal is filed. Accordingly, we have not considered the evidence

2 Registered on the Principal Register on August 14, 2012.
3 “Evidence should not be filed with the Board after the filing of a notice of appeal. If the
appellant or the examining attorney desires to introduce additional evidence after an appeal
is filed, the appellant or the examining attorney should submit a request to the Board to
suspend the appeal and to remand the application for further examination.” Applicant’s late
attempt, in its Reply Brief, to request a remand for the purpose of introducing this evidence
is denied for failure to include a showing of good cause therefor. See TBMP § 1207.02.
Serial No. 86905311

- 3 -
attached to Applicant’s brief that has been submitted for the first time.4 Trademark
Rule 2.142(d), 37 C.F.R. § 2.142(d); Trademark Trial and Appeal Board Manual of
Procedure (TBMP) § 1207.01 (June 2017); see also In re Quantum Foods Inc., 94
USPQ2d 1375, 1377 n.2 (TTAB 2010).
Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see
also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods [and services] and
differences in the marks.”); see also In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409
(TTAB 2015).
A. The Similarity or Dissimilarity of the Marks.

4 The only evidence that was previously submitted, and which we have considered, is a copy
of the definition of “intimate apparel” from the Free Dictionary, at
http://www.thefreedictionary.com/intimate+apparel, attached to Applicant’s September 8,
2016 Response to Office Action, TSDR 17. All citations to the TSDR database are to the
downloadable PDF versions of the documents.
Serial No. 86905311

- 4 -
We turn first to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E.I. du Pont, 177 USPQ at 567. “The
proper test is not a side-by-side comparison of the marks, but instead ‘whether the
marks are sufficiently similar in terms of their commercial impression’ such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012) (quoting Leading Jewelers Guild Inc. v. LJOW Holdings
LLC, 82 USPQ2d 1901, 1905 (TTAB 2007); see also San Fernando Elec. Mfg. Co. v.
JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d
1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer,
who retains a general rather than specific impression of the marks. Geigy Chem.
Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); In
re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012). Here, the average purchaser of Applicant’s
goods is an ordinary consumer interested in shirts, jackets, pants, and shorts
specifically designed for the sport of cheerleading, while the ordinary consumer of
Registrant’s goods is interested in purchasing intimate apparel and figure enhancing
garments.
Applicant is seeking to register the mark NFINITY FLEX. The mark in the cited
registration is CALVIN KLEIN INFINITY FLEX. The marks are similar in
Serial No. 86905311

- 5 -
appearance, pronunciation and connotation due to the presence of the shared phrase
“infinity flex.” The only difference between the terms NFINITY FLEX and INFINITY
FLEX is the presence of the initial letter “I” in Registrant’s mark. Given the common
pronunciation of the letter “N” (as “\'en\”) and the prefix “IN” (as “\ˈin\”),5 as well
as the fact that “infinity” is a common English word meaning “having no limits or
end,”6 Applicant’s mark will likely be viewed as containing a misspelling of the word
“infinity.” See, e.g., In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985)
(CAYNA and CANA create “substantially similar commercial impressions”); United
States Mineral Products Co. v. GAF Corp., 197 USPQ 301, 306 (TTAB 1977) (“‘AFCO’
and ‘CAFCO,’ which differ only as to the letter ‘C’, are substantially similar in
appearance and sound”); In re Bear Brand Hosiery Co., 194 USPQ 444, 445 (TTAB
1977) (KIKS and KIKI similar). Moreover, the mark at issue is NFINITY FLEX, and
although “flex” is disclaimed,7 there is no record evidence from which we may surmise
that “Infinity” would be considered weak or that “Infinity Flex,” as a whole, is merely
descriptive.8 The overall commercial impression of Applicant’s mark is similar to the

5 According to Merriam Webster, the letter “N” in English is pronounced “\'en\” and the
word “in” is pronounced “\ˈin\.” At https://www.merriam-webster.com/dictionary/, accessed
September 29, 2017. The Board may take judicial notice of dictionary definitions, including
definitions or entries from references that are the electronic equivalent of a print reference
work. See University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ
594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Petroglyph
Games, Inc., 91 USPQ2d 1332, 1334 n.1 (TTAB 2009).
6 At http://www.merriam-webster.com, attached to September 28, 2016 Office Action, TSDR
10.
7 In response to the Examining Attorney’s request for information, Applicant stated that “ as
with most types of clothing, the clothing identified by Applicant’s Mark is flexible and allows
movement by the wearer.” September 8, 2016 Response, TSDR 16.
8 As defined, “flex” means “to bend especially repeatedly.” At http://www.merriam-
webster.com/dictionary/flex, attached to September 28, 2016 Office Action, TSDR 19. Even if
“flex” by itself would be considered descriptive, the connotation of “infinity flex” is suggestive
Serial No. 86905311

- 6 -
phrase “INFINITY FLEX” of Registrant’s mark, i.e., something of infinite flexibility,
a desirable trait in clothing designed for cheerleading or for intimate apparel.
Applicant argues that the marks are distinguishable by the CALVIN KLEIN
house mark on the one hand, and its own corporate name NFINITY on the other.
While the record demonstrates that the mark CALVIN KLEIN is used in connection
with a variety of clothing as a house mark,9 the record does not support a finding that
NFINITY would be considered a house mark or that consumers would disassociate
the term “FLEX” from the term “NFINITY” in the applied-for mark. The copies of
pages from the website TeamCheer.com10 that show Applicant’s apparel offered
online under the NFINITY FLEX mark do not prove otherwise.
They illustrate usage of “Nfinity” as Applicant’s trade name, but to qualify as a house
mark, the name must perform the function of identifying a line of products from the
brand owner, and Applicant does not argue that it offers a line of “FLEX” products.
See In re Royal BodyCare Inc., 83 USPQ2d 1564, 1568 (TTAB 2007) (“The usual
situation in which this principle has normally been applied… involves a house mark
which normally serves to identify the source of the product, per se, and a product
mark which serves to identify a particular product within a line of merchandise
normally associated with and distinguished by the house mark.”) (citing Amica
Mutual Insurance Company v. R. H. Cosmetics Corp., 204 USPQ 155, 161 (TTAB

of clothing with certain elasticity that stretches when it needs to, in particular when doing
sports or an activity.
9 See printouts of Calvin Klein webpages at http://www.calvinklein.com/shop, attached to
March 9, 2016 Office Action, TSDR 113-33.
10 At http://www.teamcheer.com/Nfinity/Apparel 7, attached to September 28, 2016 Office
Action, TSDR 157-160.
Serial No. 86905311

- 7 -
1979)). The terms “nfinity” and “flex” in the applied-for mark do not create two
separate impressions and the term “flex” does not “identify a particular product
within a line of merchandise.”11
On the other hand, we find that CALVIN KLEIN is Registrant’s house mark.12
The perception of CALVIN KLEIN as Registrant’s house mark does not obviate a
finding of likely confusion. There are no recognizable differences in Registrant’s
product mark (INFINITY FLEX) and Applicant’s mark NFINITY FLEX such that the
addition of the house mark would render the marks as a whole “registrably
distinguishable.” In re Champion Int’l Corp., 196 USPQ 48, 49 (TTAB 1977) (“Thus,
if persons familiar with ‘HAMMERMILL MICR CHECK-MATE’ paper were to
encounter ‘CHECK MATE’ envelopes in the same environment, it is reasonable to
assume that they would mistakenly assume that they were ‘HAMMERMILL CHECK
MATE’ envelopes.”) Indeed, consumers already familiar with the Calvin Klein house
mark and the company’s INFINITY FLEX line of clothing may mistakenly believe
that the NFINITY FLEX cheerleading apparel is an extension of the INFINITY FLEX
line of clothing being marketed without the addition of Registrant’s house mark. See,
e.g., In re Fiesta Palms LLC, 85 USPQ2d 1360, 1367 (TTAB 2007) (affirming refusal

11 In its application, Applicant claims ownership of U.S. Registration Numbers 3075134,
3938590, and 3938591. To the extent Applicant relies on its alleged ownership of these prior
registrations to show that consumers would recognize NFINITY as a house mark, we note
that Applicant has not made the prior registrations of record. In any event, none of the prior
registrations are for marks that include the term “flex,” and each includes a stylized rendition
of an “infinity symbol”: . The presence of the infinity symbol reinforces the association
with the word “infinity” of Registrant’s mark. Thus, even if we had considered this evidence,
it would not have changed the result herein.
12 Moreover, in its reply brief, Applicant refers to “Calvin Klein” as Registrant’s “house mark.”
13 TTABVUE 7,8.
Serial No. 86905311

- 8 -
to register CLUB PALMS MVP for casino services based on prior registration of MVP
for casino services offered to preferred customers identified by special identification
cards); In re Chatam International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir.
2004) (affirming refusal to register JOSE GASPAR GOLD for tequila based on prior
registration of GASPAR’S ALE for beer); In re Toshiba Medical Systems Corp., 91
USPQ2d 1266, 1271 (TTAB 2009) (affirming refusal to register VANTAGE TITAN for
medical magnetic resonance imaging diagnostic apparatus based on prior
registration of TITAN for medical diagnostic apparatus, namely, medical ultrasound
device, stating “[i]t is not clear why the addition of the word VANTAGE would avoid
confusion. It is more likely to be considered another product from the previously
anonymous source of TITAN medical diagnostic apparatus, namely, medical
ultrasound devices”).
Applicant’s reliance on Kate Spade LLC v. Saturdays Surf LLC, 950 F. Supp. 2d
639, 645 (S.D.N.Y. 2013) and Playtex Products, Inc. v. Georgia-Pacific Corp., 390 F.3d
158, 73 USPQ2d 1127 (2d Cir. 2004) for the proposition that due to its fame, the
presence of the CALVIN KLEIN house mark “significantly reduces the potential for
confusion,”13 is misplaced. In Kate Spade, the court determined that the mark KATE
SPADE SATURDAY did not infringe either the registered mark SATURDAYS SURF
NYC, or defendant’s asserted but unproven common law rights in the term
SATURDAYS, in large part because the court was “not persuaded that the mark
‘Saturdays’ alone is protectable.” Kate Spade, 950 F. Supp. 2d at 639. In contrast, as

13 Applicant’s Reply Brief, 13 TTABVUE 12.
Serial No. 86905311

- 9 -
a whole, the phrase “Infinity Flex” in Registrant’s mark is at worst suggestive for the
reasons discussed supra. In Playtex Products, the court affirmed the lower court’s
finding that Georgia-Pacific’s mark QUILTED NORTHERN MOIST-ONES did not
infringe plaintiff’s mark WET ONES, relying on the “overall effect of the size,
prominence, and placement of the words ‘Quilted Northern’ on the packing of ‘Quilted
Northern Moist-Ones,’” conditions not present in this ex parte proceeding, where
manner of use is not considered. Playtex Products, 73 USPQ2d at 1133. Further,
Registrant’s mark is in standard characters, giving Registrant the right to display
the mark in any font style, size or color. Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a).
Accordingly, we may not presume that Registrant will display its mark in such a
manner as to highlight the prominence of its house mark. Applicant, too, has applied
for its mark in standard characters, and there is no basis for concluding that
Applicant would emphasize the term NFINITY in its mark by use of font style, size
or color thereof. The addition of the house brand CALVIN KLEIN to Registrant’s
mark serves to aggravate, rather than mitigate, the likelihood of confusion.
Considering the two marks in their entireties, we find that, overall, they are
substantially similar in appearance, pronunciation, connotation and commercial
impression. The du Pont factor of the similarity of the marks weighs in favor of a
finding of likelihood of confusion.
B. The Relatedness of the Goods and their Channels of Trade
We turn next to a comparison of the goods. In making our determination under
the second du Pont factor, we look to the goods as identified in the involved
Serial No. 86905311

- 10 -
application and cited registration. We also make our determination regarding the
channels of trade and classes of purchasers based on the goods as they are identified
in the application and registration, respectively. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Sys. Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 17893, 1787
(Fed. Cir. 1990); see also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002).
In this case, Applicant’s goods are identified as “athletic clothing for cheerleading,
namely, shirts, jackets, pants, and shorts.” The identification of goods of the cited
registration includes specific items of intimate apparel and figure enhancing
garments, including bras, panties, underclothes and sleepwear. The Examining
Attorney contends that the goods are related; Applicant contends that the types of
clothing are sufficiently different that consumers would not consider them to emanate
from the same source.
The goods of the parties need not be identical or even competitive to find a
likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080,
1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Trademark Manual of Examining
Procedure (TMEP) §1207.01(a)(i). The respective goods need only be “related in some
manner and/or if the circumstances surrounding their marketing [be] such that they
could give rise to the mistaken belief that [the goods and/or services] emanate from
the same source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Moreover, under this du Pont factor,
Serial No. 86905311

- 11 -
the Examining Attorney need not prove, and we need not find, similarity as to each
and every item in the description of goods. It is sufficient for a refusal based on
likelihood of confusion that relatedness is established for any item encompassed by
the identification of goods in the class. Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, 116
USPQ2d at 1409; Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB
2014).
The Examining Attorney has submitted three categories of evidence in support of
a finding that the goods are related. First, the Examining Attorney submits pages
from third-party websites at which both types of goods are sold. Secondly, the
Examining Attorney submits pages from websites for clothing designed for
cheerleading purposes, including Applicant’s, showing that sellers of cheerleading-
specific clothing also sell bras and underwear. Third, the Examining Attorney
submits copies of third-party registrations whose identification of goods include both
“shirts, jackets, pants, and shorts” on the one hand, and “intimate apparel, figure
enhancing garments” on the other, under a single mark. This cumulative evidence
clearly supports a finding that the goods are related.
Examples of third-party websites at which both “shirts, jackets, pants, and
shorts” and “intimate apparel” are sold under a single mark include those sold by
Under Armour, Inc. under its logo mark :
Serial No. 86905311

- 12 -
14 15 16
17
We find these examples to be of some value, but as they are not specifically
designed for cheerleading, their probative value is limited. Next are several examples
of companies offering shirts, jackets, pants and shorts specifically designed for
cheerleading which also sell intimate apparel under a single brand. For example, M.J.
Soffe, LLC sells a line of goods marketed as “Sport Cheer/Dance” that includes shorts,
tanks, bras, and tee-shirts:

14 At https://www.underarmour. com/en-us/womens/, attached to March 9, 2016 Office Action,
TSDR 12.
15 Id., TSDR 18.
16 Id., TSDR 38.
17 Id., TSDR 34-5.
Serial No. 86905311

- 13 -
18
19

18 At http://www.soffe.com/ladies/sport/cheer-dance.html, attached to March 9, 2016 Office
Action, TSDR 82.
19 Id., TSDR 84.
Serial No. 86905311

- 14 -
Another website, “GTM Sportswear,” offers a line of clothing for cheerleaders,20
including shirts, pants, and shorts for cheerleading practice, as well as “cheerleading
accessories” such as crop tops, bras, leggings, shorts, and a “basic brief”:21

20 At http://gtmsportswear.com/cheerleading, attached to September 28, 2016 Office Action,
TSDR 41, 47 and 29, 34, 40.
21 Merriam Webster defines “crop top” as “a short upper-body garment for women that does
not cover the midriff”; “leggings” as “a covering (as of leather or cloth) for the leg —usually
used in plural”; and “briefs” as “short snug pants or underpants.” At https://www.merriam-
webster.com, accessed October 1, 2017.
Serial No. 86905311

- 15 -

Serial No. 86905311

- 16 -
At its own website, Applicant offers NFINITY FLEX shorts, bras, jackets, and
capris.22

The shorts and bras that Applicant offers are in the nature of intimate apparel,
and accordingly would be encompassed by the broad wording in Registrant’s
identification of goods, “intimate apparel …, namely, bras…underwear.” We
recognize that these items are not included in Applicant’s amended identification of
goods. On the other hand, the evidence reinforces our finding that the goods are
related. Other website evidence further supports the finding that cheerleading
clothing typically includes such intimate apparel. For example, the Augusta Active
website offers “Cheerleader Uniforms” that include a “girls’ cheer brief” as well as
shorts and pants designed to be worn over underwear.23 JB Bloomers also offers a
“cheer brief” in addition to regular pants, shorts and tops.24
We find these examples, from Applicant’s website and other suppliers of
cheerleading apparel, to be particularly compelling. They show that the goods are

22 At http://www.teamcheer.com, attached to September 28, 2016 Office Action, TSDR 157-8.
“Capris” are “close-fitting women's pants that end above the ankle.” At https://www.merriam-
webster.com, accessed October 1, 2017.
23 At http://www.augustaactive.com/sports/cheerleader-uniforms, attached to September 28,
2016 Office Action, TSDR 111-2.
24 At http://jbbloomers.com, attached to September 28, 2106 Office Action, TSDR 139-46.
Serial No. 86905311

- 17 -
related and sold through the same channels of trade to the same classes of consumers.
Further reinforcing this finding are the third-party registrations introduced by the
Examining Attorney that include athletic clothing for cheerleading and intimate
apparel.25 For example,
• Reg. No. 5037068 for the mark for “Clothing, namely, baseball caps,
hats, sun visors, shirts, sweatshirts, sweatpants, pants, tank tops, jerseys,
shorts, pajamas, sport shirts, belts, ties, parkas, coats, baby bibs not of
paper, head bands, wrist bands, undergarments, boxer shorts, gloves,
mittens, scarves, dresses, cheerleading dresses and uniforms;26
• Reg. No. 4917404 for the mark SPIRITFLEX for “Clothing, namely, ankle
tights, bodywear in the nature of crop tops, bras, and briefs, capris,
cheerleading uniforms, jackets, pants, shirts, shorts, skirts and warm-
up suits”;27
• Reg. No. 4776254 for the mark BOW-TO-TOE for “Cheerleading
uniforms and clothing, namely, shirts, pants, fitness pants, yoga
pants, skirts, socks, shoes, undergarments, gloves, hats, body suits,
warm-up suits, warm-up jackets and warm-up pants”;28 and
• Reg. No. 4888842 for the mark for “Clothing, namely, tee shirts,
shorts, pants, capris, skirts, cheer uniforms, bras, hats, athletic tops

25 We note that bras or briefs could also be considered “figure enhancing garments.”
26 Registered September 6, 2016. Attached to September 28, 2016 Office Action, TSDR 173.
27 Registered March 15, 2016. Id., TSDR 181.
28 Registered July 21, 2015. Id., TSDR 176.
Serial No. 86905311

- 18 -
and bottoms for cheerleading and exercising, sweatshirts, hooded
sweatshirts, sweatpants, sweat suits, swimsuits and swimwear.”29
Third-party registrations which individually cover a number of different items
and which are based on use in commerce may have some probative value to the extent
that they serve to suggest that the listed goods and/or services are of a type which
may emanate from a single source. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126
n.6 (TTAB 2015); See also In re RiseSmart Inc., 104 USPQ2d 1931, 1934-1935 (TTAB
2012); In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); and In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
The evidence is sufficient to persuade us that if consumers were to encounter
Applicant’s athletic clothing for cheerleading under its mark NFINITY FLEX, they
would likely believe the products are related to Registrant’s intimate apparel sold
under its CALVIN KLEIN INFINITY FLEX mark. Accordingly, we find that the du
Pont factors of the similarity or dissimilarity of the goods and services and their trade
channels and classes of consumers favor a finding of likelihood of confusion.
Summary
We have considered all of the arguments and evidence of record as they pertain to
the du Pont likelihood of confusion factors. To the extent that any other du Pont
factors for which no evidence was presented by Applicant or the Examining Attorney
may nonetheless be applicable, we treat them as neutral.

29 Registered January 19, 2016. Id., TSDR 186.
Serial No. 86905311

- 19 -
In light of the foregoing, we conclude that consumers familiar with Registrant’s
intimate apparel and figure enhancing garments offered under the mark CALVIN
KLEIN INFINITY FLEX would be likely to believe, upon encountering Applicant’s
athletic clothing for cheerleading offered under its mark NFINITY FLEX that the
goods originated with, are associated with, or are sponsored by the same entity.
Decision: The refusal to register is affirmed.