Magnify Sportswear

This Opinion is Not a
Precedent of the TTAB
Mailed: January 30, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Magnify Sportswear
_____
Serial No. 97494080
_____
Kenneth Thomas Emanuelson, The Emanuelson Firm PC,
for Magnify Sportswear.
Jared M. Mason, Trademark Examining Attorney, Law Office 119,
Brett Golden, Managing Attorney.
_____
Before Lykos, Lebow and O’Connor,
Administrative Trademark Judges.
Opinion by O’Connor, Administrative Trademark Judge:
Magnify Sportswear (“Applicant”) seeks registration on the Principal Register of
the word and design mark (SPORTSWEAR
disclaimed) for goods ultimately identified as “sport coats; sport shirts; sport
stockings; sports bra; sports bras; sports caps and hats; sports jackets; sports jerseys
and breeches for sports; sports over uniforms; sports overuniforms; sports pants;

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sports shirts; sports shirts with short sleeves; sports singlets; sports vests,” in
International Class 25.1
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that the mark, when used in connection with
the identified goods, is likely to cause confusion, mistake or deception with the
standard character mark MAGNAFIED, registered on the Principal Register for
“beanies; clogs; pants; sandals; shirts; shoes; slacks; sneakers; sweatshirts; T-shirts;
boat shoes; caps being headwear; sandal-clogs; shirts and short-sleeved shirts; shirts
for suits; baseball caps; baseball caps and hats; bucket caps; canvas shoes; corduroy
pants; denim pants; denims; dress pants; dress shirts; graphic T-shirts; hooded
sweatshirts; knot caps; leather shoes; polo shirts; short-sleeved or long-sleeved t-
shirts; wooden clogs,” in International Class 25 (the “Cited Registration” or “Cited
Mark”).2
When the refusal was made final, Applicant filed a timely request for
reconsideration and appeal, which was suspended pending reconsideration. The
Examining Attorney denied the request for reconsideration and the appeal was
resumed and is now fully briefed. We affirm the refusal to register.
1 Application Serial No. 97494080 was filed on July 8, 2022 pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s averment of a bona fide intent to
use the mark in commerce. The amended mark description states that “[t]he mark consists
of the stylized wording ‘MAGNIFY SPORTSWEAR’ above which is a design of a shield logo
with an ‘M’ at the top and a cross outlined in the middle of the cross.” There is no color claim
in the application.
2 Registration No. 6994263 issued on March 7, 2023 under Section 44(e) of the Trademark
Act, 15 U.S.C. § 1126(e), from an application filed May 27, 2021 and based on a prior Danish
registration.

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I. Likelihood of Confusion
“The Trademark Act prohibits registration of a mark that ‘so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion, mistake, or to deceive.’” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (quoting Trademark Act Section
2(d), 15 U.S.C. § 1052(d)). Our determination of the issue of likelihood of confusion is
based on analysis of all of the probative facts in evidence that are relevant to the
factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA
1973) (the “DuPont factors”). We consider each DuPont factor for which there is
evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379-80 (Fed.
Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See In re Charger Ventures, 64 F.4th at 1381 (“In any given case, different
DuPont factors may play a dominant role and some factors may not be relevant to the
analysis.”) (citation omitted). In determining likelihood of confusion, 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.3d 1340, 1341-42 (Fed. Cir.
2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA
1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the
marks.”). These factors and others, as argued by Applicant and the Examining
Attorney, are discussed below.

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A. Similarity or Dissimilarity of the Goods and Trade Channels
The second and third DuPont factors concern the relatedness of the goods and the
“established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. We also
consider the classes of consumers. In analyzing these factors, we look to the
identifications in the Application and Cited Registration. See In re Detroit Athletic
Co., 903 F.3d 1297, 1306-07 (Fed. Cir. 2018) (“The relevant inquiry in an ex parte
proceeding focuses on the goods and services described in the application and
registration, and not on real-world conditions.”) (emphasis omitted). Registration
may be refused if Applicant’s mark for any of its identified goods is likely to cause
confusion with the Cited Mark for any of the goods listed in the Cited Registration.
Major League Baseball Players Ass’n v. Chisena, No. 91240180, 2023 TTAB LEXIS
117, at *63-64 (“It is sufficient for a finding on likelihood of confusion that relatedness
is established for any item encompassed by the identification of goods in the
application.”), aff’d unpub’d, No. 23-2073, 2026 U.S. App. LEXIS 395 (Fed. Cir. 2026);
see also, e.g., Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336
(CCPA 1981).
Applicant’s goods are
sport coats; sport shirts; sport stockings; sports bra;
sports bras; sports caps and hats; sports jackets; sports
jerseys and breeches for sports; sports over uniforms;
sports overuniforms; sports pants; sports shirts; sports
shirts with short sleeves; sports singlets; sports vests.
Registrant’s goods are
beanies; clogs; pants; sandals; shirts; shoes; slacks;
sneakers; sweatshirts; T-shirts; boat shoes; caps being

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headwear; sandal-clogs; shirts and short-sleeved
shirts; shirts for suits; baseball caps; baseball caps and
hats; bucket caps; canvas shoes; corduroy pants; denim
pants; denims; dress pants; dress shirts; graphic T-shirts;
hooded sweatshirts; knot caps; leather shoes; polo shirts;
short-sleeved or long-sleeved t-shirts; wooden clogs.
(Emphasis added to highlight some of the facially overlapping goods.)
Here, Registrant’s “pants” encompass Applicant’s “sports pants.” Registrant’s
“shirts” and “shirts and short-sleeved shirts” encompass Applicant’s “sports shirts;
sports shirts with short sleeves.” Registrant’s “caps being headwear” encompass
Applicant’s “sports caps and hats.” And Applicant’s “sports caps and hats” encompass
Registrant’s “baseball caps; baseball caps and hats.” These goods overlap on their
face, making the goods legally identical in part. See S.W. Mgmt., Inc. v. Ocinomled,
Ltd., No. 94002242, 2015 TTAB LEXIS 176, at *60-61, aff’d mem., 652 Fed. App’x 971
(Fed. Cir. 2016) (where the services in an application or registration are broadly
described, they are deemed to encompass all services of the type described); In re
Hughes Furniture Indus., Inc., No. 85627379, 2015 TTAB LEXIS 65, at *10
(“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses
Registrant’s narrowly identified ‘residential and commercial furniture.’”). See also
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)
(Board erred in concluding that there was insufficient evidence of relatedness when
it “did not consider the important evidence already before it, namely the ITU
application and [opposer’s] registrations”).
Nonetheless, Applicant argues that the goods sold under the marks are distinct
because the record shows that Registrant “actually uses the mark in connection with

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clog boots and clog shoes,” as seen in a screenshot from Registrant’s website,3 whereas
Applicant’s identification does not include any footwear. Applicant’s arguments that
the goods are distinct contravene settled law. “It is well established that the Board
may not read limitations into an unrestricted registration or application.” In re
Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *6 (quoting In re
i.am.symbolic, llc, 866 F.3d 1315, 1323 (Fed. Cir. 2017) (internal quotation marks
omitted)). This is the case regardless of alleged real world conditions. See, e.g., In re
Embiid, No. 88202890, 2021 TTAB LEXIS 168, at *37-38 (Board “may not import
restrictions into the identification[s] based on alleged real world conditions of the sort
argued by Applicant ... or consider extrinsic evidence regarding Applicant and
Registrant themselves.”) (cleaned up); Paula Payne Prods. Co. v. Johnson Publ’g Co.,
473 F.2d 901, 902 (CCPA 1973) (Board must “give full sweep” to an identification of
goods regardless of registrant’s actual business). Under these principles, it is
irrelevant whether Registrant actually uses its mark only in connection with clogs or
whether Applicant’s goods do not include footwear and only relate to sports.4 The
3 6 TTABVUE 21-22; see March 5, 2024 Request for Reconsideration, TSDR 9. The Examining
Attorney’s denial of reconsideration discussed these website screenshots without objecting to
the lack of a URL and access date, so we consider the screenshots for whatever probative
value they may have. See May 8, 2025 Denial of Request for Reconsideration, TSDR 2. Cf. In
re Mueller Sports Med., Inc., No. 97636111, 2018 TTAB LEXIS 156, at *7 (“If the applicant’s
response includes Internet evidence without a URL or date it was printed, the examining
attorney must object to the evidence in the first Office action following the response and
advise the applicant as to the proper way to make the Internet evidence of record. Otherwise
the Board may consider the objection to be waived.”).
4 6 TTABVUE 21-22.
Again improperly relying on extrinsic evidence, Applicant also argues that Registrant has
“rebranded” from MAGNFIED to KUNSTEN and is no longer using the cited mark. 6
TTABVUE 22-23. This is irrelevant to the issues before us as it constitutes a collateral attack
on the Cited Registration, which is not permissible in an ex parte appeal. See, e.g., In re Dixie

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goods identified in the Application and Registration are in-part overlapping and
legally identical.
As for the channels of trade, to the extent the goods of Applicant and Registrant
are legally identical, we presume that they travel in the same channels of trade to
the same classes of consumers. See In re Viterra, Inc., 671 F.3d 1358, 1362 (Fed. Cir.
2012) (Board was entitled to rely on presumption that, absent restrictions, legally
identical goods travel in the same channels of trade to the same class of purchasers);
In re Yawata Iron & Steel Co., 403 F.2d 752, 771 (CCPA 1968) (where there are legally
identical goods, class of purchasers is considered to be the same). The second and
third DuPont factors weigh in favor of a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks
Turning to the first DuPont factor, we compare the marks “in their entireties as
to appearance, sound, connotation, and commercial impression.” In re Detroit
Athletic, 903 F.3d at 1302-03 (quoting DuPont, 476 F.2d at 1361). “Similarity in any
one of these elements may be sufficient to find the marks confusingly similar.” In re
Inn at St. John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13, aff’d mem., 777
F. App’x 516 (Fed. Cir. 2019) (citation omitted). “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
Rests. Inc., 105 F.3d 1405, 1408 (Fed. Cir. 1997) (“Dixie’s argument that DELTA is not
actually used in connection with restaurant services amounts to a thinly-veiled collateral
attack on the validity of the registration ... the present ex parte proceeding is not the proper
forum for such a challenge.”).

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would be likely to assume a connection between the parties.” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (cleaned up).
Because similarity is determined based on the marks in their entireties, our
analysis cannot be predicated on dissecting the marks into their various
components. See, e.g., In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985);
see also In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir. 1990) (“No element
of a mark is ignored simply because it is less dominant, or would not have trademark
significance if used alone.”). Nonetheless, “in articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the marks in their
entireties.” In re Detroit Athletic, 903 F.3d at 1305 (quoting In re Nat’l Data Corp.,
753 F.2d at 1058).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (citation omitted). Marks must be considered
in light of the fallibility of memory, id. at 751, and “[t]he focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks.” In re St. Julian Wine Co., No. 87834973, 2020 TTAB
LEXIS 196, at *13 (citations omitted).

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Applicant’s mark is M MAGNIFIY SPORTSWEAR and design
and the Cited Mark is MAGNAFIED in standard
characters.
The Examining Attorney argues that the dominant portion of Applicant’s mark is
the word MAGNIFY because it is the first word in the mark, which consumers will
pay the most attention to and use to call for the goods, and SPORTSWEAR has been
disclaimed.5 The Examining Attorney takes the position that MAGNIFY and
MAGNAFIED are similar because MAGNAFIED is a misspelling of MAGNIFIED,
the past tense of MAGNIFY.6 According to the Examining Attorney, the words could
be pronounced the same, and this “similarity in sound alone may be sufficient to
support a finding that the compared marks are confusingly similar.”7 The Examining
Attorney maintains that “[e]ven assuming applicant is literally correct that the
singular ‘M’ is more dominant, which the Examining Attorney does not concede, it
does not follow that this overcomes the striking similarities of ‘MAGNIFY’ and
5 8 TTABVUE 4-5.
6 Id.; April 24, 2023 Nonfinal Office Action, TSDR 3, 9 (attaching definition of “magnify” from
merriam-webster.com); May 8, 2025 Denial of Request for Reconsideration, TSDR 2.
7 September 15, 2023 Final Office Action, TSDR 4 (citing In re 1st USA Realty Professionals,
Inc., No. 78553715, 2007 TTAB LEXIS 73, at *16 (internal citation omitted)).

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‘MAGNAFIED’. ‘MAGNIFY’ tells the consumers in the drawing what the ‘M’ stands
for, which could just as easily stand for ‘MAGNIFIED’ or ‘MAGNAFIED.’”8
We agree that is similar to MAGNAFIED,
particularly in sound and connotation, because the distinctive verbal elements
MAGNIFY and MAGNAFIED are very similar. A finding of similarity is usually not
avoided by a slight misspelling, and it is not avoided here with the use of an “A”
instead of an “I” in the Cited Mark. See Contour Chair-Lounge Co. v. Englander Co.,
324 F.2d 186, 189 (CCPA 1963) (“‘Contur’ [is] but a slight misspelling of ‘Contour,’
with identical pronunciation and meaning.”).
Applicant nonetheless argues, repeatedly but incorrectly, that the marks “share
only one letter combination in common, namely the four letter combination ‘MAGN.’”9
We are not persuaded by Applicant’s attempt to distinguish the verbal portions of the
marks based on the number of letters they share. See, e.g., In re John Scarne Games,
Inc., 1959 TTAB LEXIS 31, at *1 (“Purchasers ... do not engage in trademark syllable
counting—they are governed by general impressions made by appearance or sound,
or both.”). Moreover, Applicant’s statement is factually flawed because it ignores the
subsequent letters in MAGNIFY and MAGNAFIED, which both contain the identical
letter F and the aurally similar letters or letter combinations before and after the F.
8 Id. at 5.
9 See, e.g., 6 TTABVUE 11, 12; March 5, 2024 Request for Reconsideration, TSDR 8.

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As noted by the Examining Attorney and not disputed by Applicant, the word
SPORTSWEAR in Applicant’s mark is less dominant because it follows MAGNIFY
and is merely descriptive of the goods. See, e.g., In re Detroit Athletic, 903 F.3d at
1305; In re Dixie Rests., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (DELTA, not the
disclaimed generic word CAFE, is dominant portion of mark THE DELTA CAFE and
design).
Applicant also seeks to distinguish the marks based on the design that appears in
its mark but not in the Cited Mark. Applicant contends that the design in its mark is
dominant, similar to other marks that were found not confusingly similar, despite
having identical or nearly identical words, due to a design appearing in only one of
the marks.10 We have considered all of the cases cited by Applicant, but they do not
persuade us that the design is dominant or distinguishes the involved marks. See
Indus. Nucleonics Corp. v. Hinde, 474 F.2d 1195, 1999 (CCPA 1973) (“Each case must
be decided on its own facts and the differences are often subtle ones.”).
The design in Applicant’s mark is a reversible image, which can be perceived as a
cross within a shield or as the letter M with two downward facing triangles. When
the design is perceived as a cross within a shield, it hints at the religious significance
of the word MAGNIFY.11 When the cross is not perceived, the design appears as a
10 6 TTABVUE 15-19.
11 Dictionary evidence made of record shows that “magnify” means to “extol, laud.” April 24,
2023 Nonfinal Office Action, TSDR 9. Applicant states that the design in its mark, “including
the white cross, is extremely suggestive of the fact that Applicant’s sportswear is marketed
to Christian athletes.” 6 TTABVUE 19. The original mark description, which Applicant later
amended pursuant to a requirement in the Nonfinal Office Action, stated that “‘[t]he mark
consists of the word element ‘MAGNIFY SPORTSWEAR’ represented in [] capital letters and
a design of a shield logo with an ‘M’ at the top representing ‘MAGNIFY’, and a cross outlined

Serial No. 97494080
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large, bold letter M with the downward facing triangles leading the eye toward the
words appearing below the design, the first of which starts with an M. In either case,
the significance of the design is to emphasize the words, which themselves appear in
a fairly large, clear font. Cf. Herbko Int’l v. Kappa Books, 308 F.3d 1156, 1165 (Fed.
Cir. 2002) (“[T]he puzzle design does not convey any distinct or separate impression
apart from the word portion of the mark. Rather, it serves only to strengthen the
impact of the word portion in creating an association with cross-word puzzles”).
In this respect, this case is different from those cited by Applicant in which the
design was dominant and helped distinguish marks sharing identical or very similar
words. For example, in In re White Rock Distilleries, Inc., No. 77093221, 2009 TTAB
LEXIS 601, the mark was held not to be confusingly similar to VOLTA in
standard characters. Unlike the design in Applicant’s mark
, there was no indication that the vine shoot
design had any meaning or reinforced the shared word VOLTA.
in the middle of the logo representing the Christian faith that is central to each product.”
July 8, 2022 TEAS Plus Application, TSDR 1.

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Although the design in Applicant’s mark is bold in appearance, it is not so
engaging in its own right or distracting from the words as to be dominant in the mark
or avoid a likelihood of confusion with a mark featuring a very similar literal element.
This is unlike the marks in Parfums de Coeur Ltd. v. Lazarus, No. 91161331, 2007
TTAB LEXIS 36 ( ) and Steve’s Ice Cream v. Steve’s Famous Hot Dogs,
No. 91070603, 1987 TTAB LEXIS 53 ( ). The same can be said of other
cases cited by Applicant, where the common words were also smaller and less
prominent than other matter in the marks. See In re Covalinski, No. 85685983, 2014
TTAB LEXIS 353 ( ); Ferro Corp. v. Ronco Labs., Inc., 356
F.2d 122 (CCPA 1966) ( ).
Instead, the design here emphasizes and reinforces the word MAGNIFY, which
begins with the letter M, and which we find to be dominant in Applicant’s mark. See
UMG Recordings, Inc. v. Mattel, Inc., No. 91176791, 2011 TTAB LEXIS 286, at *53
(finding MOTOWN to be dominant where M in design mark “merely reinforces the

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first letter in MOTOWN, and the font and square border are insignificant”); In re
Cont’l Graphics Corp., No. 75033628, 1999 TTAB LEXIS 500, at *4 (“Indeed, the
dominant role of the word CONTINENTAL in the overall commercial impression
created by the registered mark is reinforced, rather than negated, by the inclusion in
the mark of the globe design depicting stylized continents and the inclusion of the
large letter ‘C’, which is the first letter of the word ‘CONTINENTAL.’”). We do not
ignore the design and word SPORTSWEAR in Applicant’s mark, but they are less
important in our comparison because consumers are more likely to recall the
distinctive verbal element MAGNIFY and use it to call for the goods. See Jack
Wolfskin Ausrustung Fur Draussen GmbH, 797 F.3d 1363, 1371 (Fed. Cir. 2015)
(“when a mark consists of both words and a design, the verbal portion of the mark is
the one most likely to indicate the origin of the goods to which it is affixed”).
Comparing the marks and MAGNAFIED in
their entireties, we find that they are similar in sound and meaning, and somewhat
similar visually, due to the very similar words MAGNIFY and MAGNAFIED. Despite
the visual differences resulting from the design appearing in Applicant’s mark but
not in the Cited Mark, the marks create similar overall commercial impressions due
to the similar words and the design element reinforcing the word MAGNIFY.12
12 Applicant’s remaining arguments subject the marks to a side-by-side dissection and are
not well-taken. 6 TTABVUE 12-14. See Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d

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When, as in this case, the “marks would appear on virtually identical goods or
services, the degree of similarity necessary to support a conclusion of likely confusion
declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed.
Cir. 1992); see also Alfacell Corp. v. Anticancer, Inc., No. 92032202, 2004 TTAB
LEXIS 441, at *12 (lesser degree of similarity required “when marks are applied to
legally identical goods”). The first DuPont factor also weighs in favor of a likelihood
of confusion.
C. Asserted Weakness of the Cited Mark
Relying on third-party registrations and applications, Applicant argues that “the
letter combinations ‘MAGN,’ ‘MAGNI’ and ‘MAGNA’ are widely used in trademarks”
such that the Cited Mark should receive only a narrow scope of protection, weighing
against a likelihood of confusion.13 This argument implicates the sixth DuPont factor,
“[t]he number and nature of similar marks in use on similar goods.” DuPont, 476 F.2d
at 1361. “Evidence of third-party use of similar marks on similar goods is relevant to
show that a mark is relatively weak and entitled to only a narrow scope of protection.”
Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir. 2025) (quoting Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
1005, 1007 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”).
Moreover, Applicant’s argument that the words in its mark are in a bold, sans serif font, id.
at 12, is legally irrelevant, because, as noted by the Examining Attorney, the Cited Mark is
in standard characters and may be displayed in any style or font, including that of Applicant’s
Mark. 8 TTABVUE 6 (citing In re Viterra, 671 F.3d at 1363; In re Mighty Leaf Tea, 601 F.3d
1342, 1348 (Fed. Cir. 2010); 37 C.F.R. § 2.52(a)).
13 6 TTABVUE 23-25.

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1373 (Fed. Cir. 2005)). “[T]hird-party registrations are not evidence of third-party use
of the registered marks in the marketplace, for purposes of the sixth du
Pont factor.” In re Davey Prods., No. 77029776, 2009 TTAB LEXIS 524, at *21-22
(citation omitted). However, “[t]he existence of third-party registrations on similar
goods can bear on a mark’s conceptual strength” by showing that a common element
of the marks has “a normally understood and well-recognized descriptive or
suggestive meaning” and therefore is relatively weak. Spireon, Inc. v. Flex Ltd., 71
F.4th 1355, 1363 (Fed. Cir. 2023) (citing Jack Wolfskin, 797 F.3d at 1374, and Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015)).
Applicant provided a list of five third-party registrations for marks with the letters
MAGNI or MAGNA for clothing in Class 25 along with partial screenshots of
registration information from TSDR.14 In its Request for Reconsideration, Applicant
listed four applications for MAGNA-formative marks for unspecified goods in Class
25.15 These applications have little to no probative value because an application is
14 See July 20, 2023 Response to Office Action, TSDR 8-9, 11-15 (providing incomplete TSDR
screenshots lacking, inter alia, owner information). In his next Office action, the Examining
Attorney discussed these registrations but did not object to the incomplete information
provided by Applicant. See September 15, 2023 Final Office Action, TSDR 6. The Examining
Attorney therefore waived the deficiencies in Applicant’s evidence and we consider the
information provided for whatever it is worth. Cf. In re City of Houston, No. 77660948, 2012
TTAB LEXIS 1, at *5 (“examining attorney’s failure to advise applicant of the insufficiency
of the list of registrations when it was proffered during examination constituted a waiver of
any objection to consideration of that list”).
15 See March 5, 2024 Request for Reconsideration, TSDR 10. In denying reconsideration, the
Examining Attorney objected to Applicant simply providing a list and advised Applicant of
the need to submit copies of third-party registrations or the complete electronic equivalent
from the USPTO’s automated systems, prior to appeal. See May 8, 2025 Denial of Request
for Reconsideration, TSDR 2.
Thereafter, Applicant did not request remand so that it could properly submit copies of the
listed third party applications or registrations, see Trademark Rule 2.142(d)(1), 37 C.F.R.

Serial No. 97494080
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evidence only of the fact that it was filed. In re Team Jesus LLC, No. 88105154, 2020
TTAB LEXIS 503, at *17 n.29 (citations omitted). Applicant also listed six
registrations with no class or goods or services information provided.16 These
registrations are of no probative value in assessing weakness of MAGNAFIED for the
involved goods because we have no way to divine whether those marks are registered
for similar goods. Cf. Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d
1315, 1324 (Fed. Cir. 2018) (“the controlling inquiry is the extent of third-party marks
in use on ‘similar’ goods ….”).
The following marks are registered for the involved goods or similar goods,
including beanies, shirts, sweatshirts, t-shirts, polo shirts, jackets and/or hats and
baseball caps:
• MAGNIFY BREWING (Reg. No. 5890310)
• MAGNAFLOW (Reg. No. 4601859)
• MF MAGNAFLOW (Reg. No. 4659967)
• MAGNAFLOW PERFORMANCE EXHAUST (Reg. No. 4605899)
• MAGNIFLEX (Reg. No. 5572585)
We consider each of these marks, but find that they fall short of diminishing the
conceptual weakness of the Cited Mark. All but the first mark combine the MAGNA
prefix with another term to form a unitary mark that is distinct from MAGNAFIED.
Only the first mark, MAGNIFY BREWING, uses the word MAGNIFY. The use with
§ 2.142(d)(1), which it listed again in its appeal brief. 6 TTABVUE 24-25. This time, however,
the Examining Attorney did not object, discussing the list in his brief. See 8 TTABVUE 8-9.
We therefore consider the list of applications and registrations for whatever probative value
they may have. Cf. In re Litehouse, Inc., No. 78494701, 2007 TTAB LEXIS 20, at *12 n.2
(third-party registrations submitted with applicant’s appeal brief considered because
examining attorney did not object in her brief but instead argued against this evidence).
16 See March 5, 2024 Request for Reconsideration, TSDR 10; 6 TTABVUE 25.

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BREWING indicates that this is likely a secondary source identifier for a brewery. In
any case, these registered marks do not support a finding that the Cited Mark
MAGNAFIED or the MAGNA element has a commonly understood suggestive or
descriptive meaning for clothing that would weaken the mark. Cf. In re Inn at St.
John’s, 2018 TTAB LEXIS 170, at *12 (weakness not shown where the applicant
“presented no evidence of third-party use, and at most, four third-party registrations
of varying probative value (two for non-identical services and the other two for non-
identical terms)”).
Because the Cited Registration is “prima facie evidence of the validity of the
registered mark,” Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), we must
assume that the mark is inherently distinctive as evidenced by its registration on the
Principal Register without a claim of acquired distinctiveness under Section 2(f) of
the Trademark Act. Tea Bd. of India v. Republic of Tea, Inc., No. 91118587, 2006
TTAB LEXIS 330, at *62; see also New Era Cap Co., Inc. v. Pro Era, LLC, No.
91216455, 2020 TTAB LEXIS 199, at *29. We afford Registrant’s MAGNAFIED mark
“the normal scope of protection to which inherently distinctive marks are entitled.”
Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS 452, at
*20. The sixth DuPont factor is therefore neutral.
II. Balancing the DuPont Factors
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
used in our analysis and “explain the results of that weighing” including “the weight
[we] assigned to the relevant factors.” In re Charger Ventures, 65 F.4th at 1384. Here,

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the goods are partially overlapping and therefore legally identical in part, and to this
extent the channels of trade and classes of consumers are presumed to be the same.
The second and third DuPont factors weigh heavily in favor of likelihood of confusion.
Comparing Applicant’s mark and Registrant’s
MAGNAFIED mark in their entireties, we find that the marks are similar, due
largely to the similarity of the dominant word MAGNIFY in Applicant’s mark, which
is emphasized and reinforced by the design, to the Cited Mark MAGNAFIED. The
first DuPont factor also weighs in favor of likelihood of confusion. Applicant has not
shown that the Cited Mark is either commercially or conceptually weak, meaning
that the sixth factor is neutral. No DuPont factors weigh against a likelihood of
confusion.
We conclude that confusion is likely between Applicant’s mark and the Cited Mark
for their respective identified goods.
Decision:
The refusal to register Applicant’s mark under Trademark Act Section 2(d) is
affirmed.