ABT, Inc. v. Landscape Structures Inc.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: May 22, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
ABT, Inc.
v.
Landscape Structures Inc.
_____
Opposition No. 91287603
_____
Samantha N. Skains-Menchaca and Matthew S. DeAntonio of Bradley Arant Boult
Cummings LLP, for ABT, Inc.
David K. Friedland and Jaime Rich Vining of Friedland Vining, P.A., and
Christopher L. Holt of Kelly, Holt, and Christenson, for Landscape Structures Inc.
_____
Before Larkin, Allard, and Elgin,
Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Applicant Landscape Structures Inc. seeks registration on the Principal Register
of the standard-character mark FLEXX for “playground equipment, namely, climbing
units; playground equipment, namely, barriers between playground areas;

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playground equipment, namely, nets” in International Class 28.1
Opposer ABT, Inc. opposes registration of Applicant’s mark based on a claim of
likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).2 In its
Amended Notice of Opposition, Opposer claims ownership of Reg. No. 4679264 for the
standard-character mark FLEXEDGE, registered for “non-metallic polymeric
landscape borders, namely, plastic landscape edging for sports fields, playgrounds,
parks and recreational areas” in International Class 19 (the “’264 Registration”);3
and three registrations for the mark SPORTSEDGE registered for various goods in
International Classes 6, 19, and 20 (the “SPORTSEDGE Registrations”).4 Opposer
also pleads prior common law rights in the FLEXEDGE mark in connection with
various landscape borders and edging products together with the goods and services
identified in the SPORTSEDGE Registrations.5
Applicant filed an Answer to the Amended Notice of Opposition denying the
salient allegations of the complaint.6 Applicant asserted “affirmative defenses,” most
1 Ser. No. 97511873, filed July 20, 2022 under Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b), based upon intention to use in commerce.
2 8 TTABVUE 12-19 (Amended Notice of Opposition). The Amended Notice of Opposition and
Answer thereto are the operative pleadings in the proceeding.
3 Issued Jan. 27, 2015 under Trademark Act Section 1(a); renewed.
4 8 TTABVUE 13-14, 17-19 (Amended Notice of Opposition ¶¶ 2-7). Reg. No. 5112049
registered January 3, 2017; Reg. No. 2894420 registered October 19, 2004; and Reg. No.
2114555 registered November 18, 1997. The Section 2(d) claim is not based on the
SPORTSEDGE Registrations. See 8 TTABVUE 15 (Amended Notice of Opposition ¶¶ 10-
14) (likelihood of confusion based on FLEXEDGE mark). Instead, Opposer alleged prior
common law use of the pleaded FLEXEDGE mark for the goods and services recited in the
SPORTSEDGE Registrations. Id. at 15 (Amended Notice of Opposition ¶¶ 7, 9).
5 8 TTABVUE 12-13, 14, 15 (Amended Notice of Opposition ¶¶ 1, 7, 9).
6 12 TTABVUE (Answer to Amended Notice of Opposition).

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of which merely amplify Applicant’s denials or are not true affirmative defenses.
Applicant also asserted an affirmative defense under Trademark Act Section 18 to
“restrict the goods or services identified in an application or registration.” 15 U.S.C.
Section 1068;7 see also Embarcadero Techs., Inc. v. RStudio, Inc., No. 91193335, 2013
TTAB LEXIS 6, at *6-8 (discussing Section 18 defense). Nonetheless, Applicant did
not pursue the Section 18 affirmative defense at trial; accordingly, the defense is
waived or forfeited. See In re Google Techs. Holdings LLC, 980 F.3d 858, 862-63 (Fed.
Cir. 2020); NT-MDT LLC v. Kozodaeva, No. 92071349, 2021 TTAB LEXIS 112, at *5
n.8.
The proceeding is fully briefed. For the reasons set forth below, we sustain the
opposition.
I. Motion to Extend Testimony and Briefing Periods
Before proceeding to the merits of the opposition, we address Opposer’s pending
motion to extend the testimony and briefing periods.
Upon denial of Applicant’s motion for summary judgment, the Board reset the
trial schedule such that Opposer’s 30-day trial period ended on Friday, June 20,
2025.8 On June 19, 2025, Opposer filed an unconsented motion to extend the trial
periods for 30 days based on “significant professional obligations in other pending
litigation matters.”9 The relevant proposed extended periods were as follows:
7 Id. at 4-5 (Affirmative Defense No. 3).
8 23 TTABVUE 8.
9 24 TTABVUE 2.

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Deadline Original Proposed
Plaintiff’s 30-day Trial Period
Ends
June 20, 2025 July 20, 2025
Defendant’s 30-day Trial
Period Ends
August 19, 2025 September 18, 2025
Plaintiff’s 15-day Rebuttal
Period Ends
October 3, 2025 November 2, 2025
Plaintiff’s Opening Brief Due December 2, 2025 January 1, 2026
Defendant’s Brief Due January 1, 2026 January 31, 2026
Plaintiff’s Reply Brief Due January 16, 2026 February 15, 2026
Applicant’s opposition to the motion argued that Opposer had failed to
demonstrate good cause for an extension and “engaged in a pattern of requesting
extensions of time on the eve of deadlines for a myriad of personal and professional
reasons,” to which Applicant had otherwise to-date consented.10
On Saturday, June 21, 2025 (i.e., one day after the close of the original period),
Opposer filed a notice of reliance, noting the pending motion and “reserv[ing] the
right to supplement this Notice of Reliance, to the extent necessary, should the Board
grant that Motion.”11 On July 21, 2025, Opposer filed a testimony declaration and
exhibits, again noting the pending motion and stating it was “filing this Notice within
the requested extension period as set forth in that Motion.”12
10 25 TTABVUE 2-4.
11 26 TTABVUE 2. The far better practice would have been for Opposer to have contacted the
assigned Interlocutory Attorney or Paralegal directly by telephone to call their immediate
attention to the pending motion and seek suspension of the proceeding pending a decision.
12 27 TTABVUE 2 (confidential), 28 TTABVUE 2 (public). Because July 20, 2025 was a
Sunday, the filing would be deemed timely if the motion is granted. Trademark Rule 2.196,
37 C.F.R. § 2.196.

Opposition No. 91287603
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Applicant filed its testimony declaration on August 19, 2025 – i.e., within its
original trial period.13 Thereafter, both Opposer and Applicant filed briefs – Opposer
filed its main brief on December 2, 2025 and rebuttal brief on January 17, 2026;
Applicant filed its main brief on December 31, 2025.14 Opposer’s main brief and
Applicant’s brief were timely filed in accordance with the original (non-extended)
briefing schedule. Opposer’s rebuttal brief was filed one day late under the original
schedule.
Applicant did not move to strike Opposer’s untimely evidence or rebuttal brief.
Neither Applicant’s filings (except its opposition to the motion) nor Opposer’s briefs
mention the pending motion to extend; however, we note that Applicant did not
address any of Opposer’s evidence except its pleaded registrations.15 Thus, in the
absence of a Board ruling on the motion, Applicant did not clearly consent to the
extension; but neither did it clearly maintain an objection to it.
The standard for allowing an extension of a prescribed period prior to the
expiration of that period is “good cause.” See Fed. R. Cir. P. 6(b). “[T]he Board is
liberal in granting extensions of time before the period to act has elapsed so long as
the moving party has not been guilty of negligence or bad faith and the privilege of
extension is not abused.” Faram Holding & Furniture v. Faram 1957 S.p.A., No.
92084197, 2025 TTAB LEXIS 72, at *4 (quoting Nat’l Football League v. DNH Mgmt.
13 29 TTABVUE.
14 30 and 35 TTABVUE (Opposer’s main brief); 31 TTABVUE (Applicant’s brief); 32
TTABVUE (Opposer’s rebuttal brief).
15 See 31 TTABVUE 12.

Opposition No. 91287603
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LLC, No. 91176569, 2008 TTAB LEXIS 3, at *3-4). However, “[a] motion to extend
must state with particularity the grounds therefor, including detailed facts
constituting good cause.” Luemme, Inc. v. D.B. Plus Inc., No. 92027676, 1999 TTAB
LEXIS 726, at *6.
We find that Opposer has established good cause for the requested extension of
time of the trial periods. The press of other litigation may constitute good cause in
appropriate circumstances. Societa Per Azioni Chianti Ruffino Esportazione Vinicola
Toscana v. Colli Spolentini Spoletoducale SCRL, No. 91115956, 2001 TTAB LEXIS
360, at *3. Opposer has provided detailed facts of its counsel’s other matters to
support its motion, including several trials.16 Opposer has not abused the privilege of
extensions, as this is its first unconsented request to extend a deadline. Moreover,
although Opposer could have (and should have) acted earlier in seeking an extension,
there is nothing in the record to suggest that Opposer has been negligent or acted in
bad faith in not doing so. Applicant has not indicated any prejudice resulting from
the extension.
Accordingly, Opposer’s motion to extend time is granted. As a result, all of the
subsequent filings are deemed timely, and we have considered them.
II. The Record
The record automatically includes the operative pleadings and, pursuant to
Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the file of the opposed application.
16 24 TTABVUE 3-4.

Opposition No. 91287603
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Opposer attached an electronic copy of the ’264 Registration from the Office’s TSDR
database to its original Notice of Opposition.17
Both parties supplemented the record with testimony with exhibits and Opposer
filed documents under a notice of reliance.
Opposer submitted:
(1) The testimony Declaration of Ralph E. Brafford, Jr., Opposer’s
President, and attached exhibits including website printouts, the
application and specimens underlying Opposer’s ’264 Registration,
records of prior enforcement actions, emails, marketing materials, and
a confidential summary of sales records;18 and
(2) A Notice of Reliance on records of Applicant’s subject application and
other FLEXX-formative applications and registrations, a plain copy
registration certificate for Opposer’s pleaded mark and a Notice of
Acceptance and Acknowledgement under Trademark Act Sections 8 and
15, and copies of Applicant’s written discovery responses.19
Applicant submitted:
(1) The testimony Declaration of Jill Dunning-Harris, Applicant’s Product
Marketing Manager, and attached exhibits, including certificates of
registration and applications for Applicant’s other FLEX-formative
marks; a plain copy and partial TSDR printout of Opposer’s pleaded ’264
Registration; plain copies of Opposer’s SPORTSEDGE registrations;
excerpts from Opposer’s website; and copies of Opposer’s written
discovery responses;20 and
(2) The testimony Declaration of Dan Osterberg, Applicant’s Director of
Public Development.21
17 1 TTABVUE 7-13 (Exh. A).
18 27 (confidential) and 28 (public) TTABVUE.
19 26 TTABVUE. It was unnecessary to submit documents from the subject application file
which (as noted above) is automatically of record. Trademark Rule 2.122(b).
20 29 TTABVUE 2-63.
21 Id. at 64-66.

Opposition No. 91287603
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III. Preliminary Issues
We next address several preliminary issues with the record and briefs.
Pleaded Registrations
The electronic registration record from the Office’s TSDR database attached to
Opposer’s original Notice of Opposition shows current status and title of the ’264
Registration, which the “plain” copies submitted by Opposer at trial do not. Opposer
did not submit any records of the ’264 Registration with its superseding amended
pleading.22 However, in view of Opposer’s earlier submission of the TSDR record for
the registration as an exhibit to the original notice of opposition, that registration is
received in evidence and remains part of the record herein. Prosper Bus. Dev. Corp.
v. IBM, No. 91212472, 2014 TTAB LEXIS 354, at *16 n.11.
Moreover, Applicant’s witness testified that: “According to records of the PTO,
Opposer ABT, Inc. (‘Opposer’) is the record owner of U.S. Reg. No. 4,679,264 (the
‘Registration’) for the mark FLEXEDGE mark (‘Opposer’s Mark’), which issued on
the Principal Register on January 27, 2015…in connection with ‘non-metallic
polymeric landscape borders, namely, plastic landscape edging for sports fields,
playgrounds, parks and recreational areas,’ in International Class 19.”23 Thus,
Applicant acknowledges the pleaded ’264 Registration and Opposer’s ownership of it.
We have considered the ’264 Registration to be of record.
22 See 8 TTABVUE 12-19 (Amended Notice of Opposition).
23 29 TTABVUE 4 (Dunning-Harris Decl. ¶ 13).

Opposition No. 91287603
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SPORTSEDGE Registrations
Although Opposer did not make of record any copies of the SPORTSEDGE
registrations, Applicant’s witness testified that “Opposer owns several U.S.
registrations for the mark SPORTSEDGE for various goods and services in
International Classes 6, 9, 19, 20, 28, and 35, which overlap with those identified in
the Registration. True and correct copies of the registration certificates are attached
hereto as Composite Exhibit 4.”24 The exhibits attached to the declaration consist of
plain copies and partial TSDR records of Reg. Nos. 2894420, 2114555, and 5112049.
Id. at 21-28.
Despite irregularities in this evidence, because they were filed by Applicant, we
consider the SPORTEDGE registrations to be of record and Applicant has waived any
objections thereto. Thus, the registrations may be relied upon by any party for any
purpose permitted under the rules. Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a);
see also Nazon v. Ghiorse, No. 91216729, 2016 TTAB LEXIS 262, at *6 n.6 (opposer
could rely on TSDR records made of record by applicant).
Briefs and Citations
1. Confidential Information
Opposer only filed, and cited to, a confidential version of its brief.25 Board rules
require that “[a] copy of the submission for public viewing with the confidential
portions redacted must be submitted concurrently.” Trademark Rule 2.126(c),
24 Id. at 4 (Dunning-Harris Decl. ¶ 15).
25 30 TTABVUE.

Opposition No. 91287603
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37 C.F.R. § 2.126(c); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 412.04 (June 2025). The Board ordered Opposer to file a
redacted (public) version of its brief.26 Opposer did so on May 9, 2026.27 In addition,
although Opposer properly filed public and confidential versions of its testimony
declaration and exhibits,28 it cited only to the confidential filing of its testimony; this
made the writing of this opinion more difficult and time consuming than it should
have been. In the future, Opposer should file only confidential materials under seal.
See Trademark Rule 2.27(e), 37 C.F.R. § 2.27(e) (“When possible, only confidential
portions of filings with the Board shall be filed under seal.”). We have endeavored to
cite to public filings where possible.
Next, Applicant placed Opposer’s nonconfidential interrogatory responses in the
public record.29 Nonetheless, Opposer redacted this same information in its testimony
and briefs.30 Opposer did not move to place Applicant’s filing in the public record
under seal. In an abundance of caution, we have avoided directly quoting such
information.
2. Case Citations
Both parties cite to nonprecedential Board cases in their briefs. This practice is
discouraged. See DC Comics v. Cellular Nerd LLC, No. 91246950, 2022 TTAB LEXIS
26 34 TTABVUE.
27 35 TTABVUE.
28 27 and 28 TTABVUE.
29 29 TTABVUE 58-59 (Opposer’s Response to Interrogatory No. 5).
30 35 TTABVUE 34; 28 TTABVUE 8-9 (Brafford Decl. ¶ 19).

Opposition No. 91287603
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453, at *11 (“Citing nonprecedential cases should be done judiciously and rarely.”); In
re tapio GmbH, No. 87941532, 2020 TTAB LEXIS 483, at *26 n.30 (“Generally, the
practice of citing non-precedential opinions is not encouraged.”) (citation omitted); see
also TBMP § 101.03. Both parties also cite to decisions of other tribunals (other
Federal regional circuit courts and district courts), which generally are entitled to
little weight. The Board is bound by the decisions of the U.S. Court of Appeals for the
Federal Circuit and its predecessor, the Court of Customs and Patent Appeals, and
our own precedential decisions. Although opinions in cases originating in civil court
sometimes may be informative, there are significant differences between registration
practice and infringement cases and for this reason decisions in those cases often are
unpersuasive.
Applicant’s brief is particularly egregious because it cites over two dozen
nonprecedential cases and fourteen cases from tribunals other than the Federal
Circuit or the Board. Unlike Opposer, Applicant did not note the nonprecedential
status of the Board cases. See TBMP § 101.03(a)(2) (“Any nonprecedential cases must
be clearly identified as nonprecedential.”). The Board sometimes will review non-
binding cases if they are few in number, do not conflict with controlling authority,
and appear directly on point. But these numbers are so out of the norm that we have
not wasted scarce Board resources to do so except in the rare instances explained
below.
IV. Opposer’s Section 2(d) Claim
Section 2(d) of the Trademark Act prohibits the registration of a mark that
“[c]onsists of or comprises a mark which so resembles a mark registered in the Patent

Opposition No. 91287603
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and Trademark Office, or a mark or trade name previously used in the United States
by another and not abandoned, as to be likely, when used on or in connection with
the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15
U.S.C. § 1052(d). To prevail on its Section 2(d) claim, Opposer must prove, by a
preponderance of the evidence, that (1) it has priority in the use of its pleaded mark
and (2) use of Applicant’s mark is likely to cause confusion, mistake, or deception as
to the source or sponsorship of Applicant’s goods. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 945 (Fed. Cir. 2000).
Priority
Applicant did not contest Opposer’s priority. As explained above, Opposer’s
pleaded ’264 Registration is of record, and Applicant did not counterclaim to cancel
it.31 Therefore, priority is not at issue as to the goods identified in that registration –
that is, “non-metallic polymeric landscape borders, namely, plastic landscape edging
for sports fields, playgrounds, parks and recreational areas.” See B.V.D. Licensing
Corp. v. Rodriguez, No. 91157529, 2007 TTAB LEXIS 32, at *1 (citing King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400 (CCPA 1974)).
Opposer also pleaded common law priority in the FLEXEDGE mark in connection
with various goods, including “non-metallic landscape borders,” and the goods and
services identified in the SPORTSEDGE Registrations.32 Mr. Brafford submitted
31 See supra Section II.
32 8 TTABVUE 12-13, 14, 15, 17-19 (Amended Notice of Opposition ¶¶ 1, 7, 9, Exh. A).

Opposition No. 91287603
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unrebutted testimony that Opposer has used the FLEXEDGE mark in connection
with products since as early as June 30, 2012, including:
• Playground containment borders made from recycled rubber that
absorb impact and reduce the risk of a child’s injury;
• Landscape borders that can be used along flower beds, walkways,
trails, or driveways;
• Rubber borders that encapsulate long jump and triple jump pits in
track-and-field facilities;
• “L-curbs,” which are rubberized borders for synthetic turf fields,
which can be used as a rectangular border for a stand-alone field, as
borders between two different fields, or as borders between a
synthetic turf field and a different surface, like grass, gravel, or
pavement;
• Rubber borders that surround beach volleyball courts, which are
safer than traditional wood, plastic, or concrete borders;
• Rubber ramps that offer transition edging from one surface to
another or that cover cords and cables; and
• Rubber caps that cover existing concrete curbs.33
We find that Opposer has established common law priority of the mark
FLEXEDGE for the goods listed above, most significantly (for this case) including
rubber playground borders.34
33 28 TTABVUE 6-7 (Brafford Decl. ¶¶ 12-13).
34 Mr. Brafford also testified that Opposer has expanded its FLEXEDGE product line by
acquiring the “business assets” of Childforms in September 2022, including “a full product
line of commercial playground equipment,” id. at 7 (Brafford Decl. ¶ 15), but this date is after
the filing date of Applicant’s application and cannot be relied upon for priority of use of
FLEXEDGE. We can, however, consider this evidence under the DuPont factors discussed
below.

Opposition No. 91287603
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Likelihood of Confusion
Our likelihood of confusion determination under Section 2(d) 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 and Co., 476 F.2d 1357, 1361 (CCPA 1973)
(“DuPont”); see also In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir.
2019) (Board considers each relevant DuPont factor for which there is evidence and
argument).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also In re Charger Ventures LLC, 64
F.4th 1375, 1381 (Fed. Cir. 2023). Two key considerations in every Section 2(d) case
are the similarities between the marks and the similarities between the goods. In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)).
We focus our analysis on Opposer’s registered standard-character mark
FLEXEDGE in the ’264 Registration for “non-metallic polymeric landscape borders,
namely, plastic landscape edging for sports fields, playgrounds, parks and
recreational areas” in Class 19 and its common law rights in the FLEXEDGE mark
for rubber playground borders because these marks and goods are closest to

Opposition No. 91287603
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Applicant’s FLEXX mark for “playground equipment, namely, climbing units;
playground equipment, namely, barriers between playground areas; playground
equipment, namely, nets” in International Class 28. See Sock It to Me, Inc. v. Fan,
No. 91230554, 2020 TTAB LEXIS 201, at *20-21 (confining Section 2(d) analysis to
most similar pleaded mark); In re Max Cap. Grp., No. 77186166, 2010 TTAB LEXIS
1, at *5 (same). If we find a likelihood of confusion as to these marks and goods, we
need not find it as to the FLEXEDGE mark for other goods; conversely, if we do not
find a likelihood of confusion as to these goods, we would not find it as to the other
goods. Sock It to Me, 2020 TTAB LEXIS 201, at *21.
1. Strength and Weakness of Opposer’s Pleaded Mark
We first address the strength or weakness of Opposer’s FLEXEDGE mark because
it affects the scope of protection to which the mark is entitled. “Two of the DuPont
factors (the fifth and sixth) consider [the] strength” of a plaintiff’s mark. Spireon, Inc.
v. Flex LTD, 71 F.4th 1355, 1362 (Fed. Cir. 2023).
“The fifth DuPont factor, ‘[t]he fame of the prior mark (sales, advertising, length
of use),’ 476 F.2d at 1361, is a measure of the mark’s strength in the marketplace.”
Id. (citing Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
1325 (Fed. Cir. 2017)). This factor allows a plaintiff to expand the scope of protection
its mark based on evidence of marketplace strength. By contrast, “the sixth DuPont
factor, ‘[t]he number and nature of similar marks in use on similar goods,’ 476 F.2d
at 1361, [ ] is a measure of the extent to which other marks weaken the assessed
mark.” Spireon, 71 F.4th at 1362 (citing Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1373 (Fed Cir. 2005)).

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a. Fifth DuPont Factor: Fame
The fifth DuPont factor (fame) examines the extent to which the public perceives
the mark as indicating a single source of origin. DuPont, 476 F.2d at 1361. A “famous”
mark for fifth factor purposes is one that has extensive public recognition and renown
among consumers of particular goods and services. Bose Corp. v. QSC Audio Prods.,
Inc., 293 F.3d 1367, 1371 (Fed. Cir. 2002); Top Tobacco, L.P. v. N. Atl. Operating Co.,
No. 91157248, 2011 TTAB LEXIS 367, at *25 (fame or commercial strength is “based
on the marketplace recognition value of the mark.”). “The fifth DuPont factor, fame
of the prior mark, when present, plays a ‘dominant’ role in the process of balancing
the DuPont factors.” Recot, Inc. v. Becton, 214 F.3d 1322, 1327 (Fed. Cir. 2000).
Famous marks enjoy a “wide latitude of legal protection since they are more likely to
be remembered and associated in the public mind than weaker marks.” Palm Bay,
396 F.3d at 1374.
In assessing commercial strength or fame, we may consider direct evidence such
as consumer surveys or declarations; we also may consider indirect evidence
including the volume of sales and advertising expenditures in connection with the
identified goods sold under the mark; the length of time the mark has been in use;
widespread critical assessments; notice by independent sources of the goods offered
under the marks; the general reputation of the goods; and social media presence. Heil
Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *51 (citation
omitted); Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352, 2014 TTAB
LEXIS 2, at *18-19; see also Bose, 293 F.3d at 1371 (recognizing indirect evidence as
appropriate proof of strength).

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Opposer argues that “[t]he fame of Opposer’s Mark, meaning its public recognition
and renown to consumers of Opposer’s Goods entitles Opposer’s Mark to a wide
latitude of protection.”35 In support, Opposer points to two types of evidence:
Opposer’s longtime use of the pleaded mark and its enforcement efforts.
First, Opposer argues it has been using the pleaded mark in the United States for
more than thirteen years, generating total sales for “all FlexEdge Parts” in the mid-
seven figures; this includes including a significant boost in Fiscal Year 2024.36
Second, Opposer relies on its enforcement efforts as evidence of the strength of its
mark. See Burns Philp Food, Inc. v. Modern Prods. Inc., No. 91077433, 1992 TTAB
LEXIS 35, at *2 n.2 (policing efforts go to the strength of the mark). Mr. Brafford
testified that Opposer initiated multiple inter partes proceedings against third-party
marks beginning with the term “Flex” and supplied records relating to those
proceedings, namely:37
• A Petition for Cancellation against registrations for FLEXFOAM
BORDERS and FLEXFOAM PLAYGROUND BORDERS for various
35 35 TTABVUE 34. Opposer addresses conceptual strength of the mark under the fifth
DuPont factor, id. at 33, but conceptual strength goes to the sixth factor and we address it
below.
36 See 30 (confidential) and 35 (public) TTABVUE; 27 (confidential) and 28 (public) TTABVUE
8-9, 233-34 (Brafford Decl. ¶ 19, Exh. 3). As noted above, although Opposer filed its sales
numbers under seal, it did not mark the same data as confidential in its interrogatory
responses. Thus, as noted above, they are included in Applicant’s public filing. 29 TTABVUE
58-59 (Opposer’s Response to Interrogatory No. 5). Opposer also objected to the Interrogatory
because “its records may not delineate which revenues are attributable to which goods.” Id.
Nonetheless, Opposer relied on the same data (found in its evidence under the title “SFLEX
Product Group Sales (All FlexEdge Parts)),” 27 (confidential) and 28 (public) TTABVUE 233-
34 (Brafford Decl. Exh. 3)), in support of its fame argument.
37 28 TTABVUE 235-301 (Brafford Decl. Exh. 4).

Opposition No. 91287603
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non-metal lawn edging in International Class 20 based on abandonment
(notice of default resulting in cancellation);
• A Petition for Cancellation against a registration for FLEXLINER for,
inter alia, “building materials made of plastics, namely, landscape
edgings and drainage conduit” in International Class 19 based on
likelihood of confusion (registration amended to remove “landscape
edgings”); and
• A Notice of Opposition against an application for FLEX SPIKE for
“Plastic landscape edging” based on likelihood of confusion (express
abandonment of the application).
Applicant counters that Opposer has not established the fame of its mark, as “such
evidence may, at best, show that Opposer is successful….”38
The evidence of record is insufficient to demonstrate that the mark FLEXEDGE
is commercially strong, let alone famous. Mr. Brafford’s testimony does not
demonstrate that many consumers of the types of goods sold under the FLEXEDGE
mark recognize the mark.39 We have no context for the sales numbers, which are not
divided by type of product. Moreover, raw sales figures (unless they are
extraordinarily large – which is not the case with Opposer’s numbers) are not
sufficient by themselves to establish that a mark is strong. See Fossil, Inc. v. Fossil
Grp., No. 91098191, 1998 TTAB LEXIS 388, at *20 (citing Gen. Mills, Inc. v. Health
Valley Foods, No. 91076303, 1992 TTAB LEXIS 37, at *22-23). There also is no
38 31 TTABVUE 31.
39 Mr. Brafford testified that Opposer’s “customers for its FlexEdge products are typically
entities who operate and maintain sporting fields, playgrounds, landscaped recreational
areas. Those entities include schools, neighborhoods, places of worship, residential facilities,
parks, municipalities or other governmental organizations, and private businesses. ABT’s
customers also include the designers and builders of those facilities work with the end-
customers to propose and choose designs and materials,” and “[o]rganizations who need
commercial playground spaces are core customers of ABT.” 28 TTABVUE 8 (Brafford Decl.
¶¶ 17, 18).

Opposition No. 91287603
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contextual evidence, such as extensive unsolicited third-party media coverage,
evidence of advertisements, or share in the marketplace, that would point to a mark
that is well-known to many relevant consumers.40
None of the only three enforcement matters resulted in a judgment on the merits.
One was a default judgment, one was a voluntary amendment, and one was a
voluntary abandonment. We cannot say that Opposer’s few enforcement matters are
“probative of the ... [fame] of ... the mark as opposed to the referenced third parties’
parties’ desire to avoid litigation.” In re Dimarzio, Inc., No. 87213400, 2021 TTAB
LEXIS 457, at *17 n.24 (citing In re Wella Corp., 565 F.2d 143, 144 n.2 (CCPA 1977));
see also Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 1323 (Fed.
Cir. 2018) (“[T]he mere fact that lawsuits were filed is not reasonably probative of the
fame inquiry, which is focused on whether the mark has achieved ‘extensive public
recognition and renown,’ … not on enforcement efforts”) (quoting Coach Servs. v.
Triumph Learning LLC, 668 F.3d 1356, 1367 (Fed. Cir. 2012)).
Opposer has not established that it is entitled to a broadened scope of protection
for its pleaded FLEXEDGE mark under the fifth DuPont factor, which is neutral.
b. Sixth DuPont Factor: Conceptual and Commercial
Weakness
This DuPont factor allows a defendant to contract the scope of protection of a
plaintiff’s mark. Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB
40 We note that neither party referred to Opposer’s nonconfidential response to Interrogatory
No. 3, which identifies Opposer’s annual advertising and promotion expenses from March
2011-2024. 29 TTABVUE 57. There is no supporting testimony or context for these figures.
Thus, we find this data minimally probative.

Opposition No. 91287603
- 20 -
LEXIS 228, at *23-24; see also Spireon, 71 F.4th at 1362-63. “There are two prongs of
analysis for a mark’s strength under the sixth factor: conceptual strength and
commercial strength.” Spireon, 71 F.4th at 1362 (citation omitted). “Conceptual
strength is a measure of a mark’s distinctiveness” along the spectrum of
distinctiveness, id., while commercial strength “is the marketplace recognition value
of the mark.” Id. at 1363 (cleaned up).
i. Conceptual Strength
Conceptual strength, or inherent strength, is a measure of a mark’s
distinctiveness, ranging from generic to fanciful. Two Pesos, Inc. v. Taco Cabana, Inc.,
505 U.S. 763, 768 (1992). Because Opposer’s registration of the FLEXEDGE mark
issued on the Principal Register without a claim of acquired distinctiveness, the mark
is presumed to be inherently distinctive as to the goods listed in the ’264 Registration.
Trademark Act 7(b); Made in Nature, 2022 TTAB LEXIS 228, at *24 (citing Tea Bd.
of India v. Republic of Tea, Inc., No. 9118587, 2006 TTAB LEXIS 330, at *62 (“A mark
that is registered on the Principal Register is entitled to all Section 7(b) presumptions
including the presumption that the mark is distinctive and moreover, in the absence
of a Section 2(f) claim in the [’264 Registration], that the mark is inherently
distinctive for the goods.”)). Opposer argues that its mark is arbitrary, therefore
conceptually strong.41
Applicant counters, “Opposer has already acknowledged that ‘third parties have
used variations of FLEX as a trademark,’ thus conceding the conceptual weakness of
41 42 TTABVUE 27.

Opposition No. 91287603
- 21 -
the term in connection with the relevant goods.”42 Applicant did not make any
evidence of third-party registrations or uses of record. Instead, Applicant indicates,
without citation to the record: “There is no question that ‘flex’ is used in the
playground industry. Opposer conceded as such in its Trial Brief, as well as in its
various discovery responses.”43 Opposer, however, argued that “[a]side from those
marks that Opposer itself has contested, the record contains no evidence of third-
party use of marks similar to FLEXEDGE for goods comparable to Opposer’s Goods.
In fact, Applicant [in its discovery responses] was unaware of any other third parties
selling similar goods under a similar mark.”44
The Federal Circuit has held that if there is evidence that a mark, or an element
of a mark, is commonly adopted by many different registrants in the relevant field(s),
that may indicate that the mark or common element has some non-source identifying
significance that undermines its conceptual strength as an indicator of a single
source. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGaA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015) (“[E]vidence of third-
party registrations is relevant to ‘show the sense in which a mark is used in ordinary
parlance,’ ... that is, some segment that is common to both parties’ marks may have
42 31 TTABVUE 33 (addressing conceptual strength under the fifth DuPont factor); see also
id. at 33-35 (addressing third party use under the sixth DuPont factor, arguing it shows the
mark is “highly suggestive”).
43 Id. at 34.
44 35 TTABVUE 35. Request for Admission No. 22 asked Applicant to admit that “Applicant
is aware of third parties that sell, offer, or provide plastic landscape edging for playgrounds
and climbing units under the same mark.” 26 TTABVUE 95. Applicant responded it was
without knowledge or information sufficient to form a belief as to the truth of the allegations
of this Request for Admission and therefore denie[d] same.” Id.

Opposition No. 91287603
- 22 -
‘a normally understood and well-recognized descriptive or suggestive meaning,
leading to the conclusion that that segment is relatively weak.’”) (quoting Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015)).
In this case, there is no evidence of record of third-party registrations or common
law uses of FLEXEDGE or any formative portion thereof (i.e. FLEX or EDGE) for
plastic or rubber playground borders. The only evidence of record relates to third-
party registrations which Opposer challenged.45 Evidence of actual use by these
parties is not in the record. Nor is there any dictionary evidence indicating the
meaning of the component terms of the mark. Applicant (albeit under the first
DuPont factor) argues that the Board has consistently taken judicial notice of the
term FLEX as meaning “bend” “which is highly suggestive of the flexibility of the
goods at issue here.”46
The evidence of Opposer’s use confirms that “FlexEdge Containment Barriers are
used to create attractive shapes and designs while bordering and containing play
area surface treatments….FlexEdge Rubber Landscape Edging is durable yet
surprisingly flexible and easy to install.”47 “Flex” is defined as “to bend especially
repeatedly.”48 If the term is short for “flexible” as Applicant argues, that term means
45 See text accompanying note 37.
46 31 TTABVUE 21 (quoting In re Champlain Cable Corp., No. 87625822, 2020 TTAB LEXIS
687, at *11 (nonprecedential) (emphasis omitted); and citing Spireon, 71 F.4th at 1364 (“It
seems apparent that the term ‘flex’ ‘hint[s] at some attribute of the goods or services’ in this
industry”) (internal citations omitted); and In re Galin, No. 74457904, 1996 TTAB LEXIS 6,
at *4-5 (“The term ‘flex,’ as defined in the dictionary, means ‘to bend.’”)).
47 28 TTABVUE 308 (emphasis added).
48 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/flex, accessed
May 21, 2026). The Board may take judicial notice of dictionary definitions, including online

Opposition No. 91287603
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“characterized by a ready capability to adapt to new, different, or changing
requirements.”49
Opposer concedes that “the second portion [of the mark], ‘edge,’ could not be
trademarked by itself because, on its own, it is descriptive of Opposer’s ‘landscape
borders’ and ‘edging products.”50 Indeed, “edging” is defined as “something that forms
an edge or border.”51 An “edge” is “the line where an object or area begins or ends.”52
A “border” is “an outer part or edge” or a “boundary” (which is defined as “something
that indicates or fixes a limit or extent.”).53
We conclude that FLEXEDGE, comprised of FLEX (short for flexible) and EDGE
(denoting a border), is suggestive overall of various features of Opposer’s plastic or
rubber borders, including that the product is an edge that bends and/or is employable
in a variety of situations. But we cannot say that it is highly suggestive and thus
conceptually weak in the absence of more supporting evidence as to how consumers
view the composite mark.
dictionaries that exist in printed format, and we do so here. In re Cordua Rests. LP, No.
85214191, 2014 TTAB LEXIS 94, at *6 n.4; see also B.V.D. Licensing Corp. v. Body Action
Design, Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“dictionaries and encyclopedias may be
consulted”).
49 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/flexible, accessed
May 21, 2026).
50 35 TTABVUE 25.
51 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/edging, accessed
May 21, 2026).
52 Id. (www.merriam-webster.com/dictionary/edge, accessed May 21, 2026).
53 Id. (www.merriam-webster.com/dictionary/border, accessed May 21, 2026);
id. (www.merriam-webster.com/dictionary/ boundary, accessed May 21, 2026).

Opposition No. 91287603
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ii. Commercial Strength
We turn to the commercial strength prong of the sixth DuPont factor, the number
and nature of similar marks in use on similar goods and services. Primrose Ret.
Cmtys., LLC v. Edward Rose Senior Living, LLC, No. 91217095, 2016 TTAB LEXIS
604, at *11. Evidence that a considerable number of third parties use similar marks
for similar goods or services is “powerful on its face” even without specifics regarding
the extent of such uses. Jack Wolfskin, 797 F.3d at 1373-74; Juice Generation, 794
F.3d at 1339. If the evidence establishes that the consuming public is exposed to
widespread third-party use of similar marks for similar goods or services, it “is
relevant to show that a mark is relatively weak and entitled to only a narrow scope
of protection.” Palm Bay, 396 F.3d at 1373.
As mentioned above, there is no evidence of use of relevant third-party marks.
Although we need not know “the specific extent and impact of the usage” to give
weight to evidence of use, Primrose Ret. Cmtys, 2016 TTAB LEXIS 604, at *17-18,
lack of evidence of any use at all of any of the challenged marks is telling. Spireon, 71
F.4th at 1365 (burden rests on challenger to establish that non-identical prior marks
were actually in use).
In other words, we cannot glean from the evidence before us that consumers are
accustomed to encountering marks containing the terms in the pleaded mark in
connection with plastic or rubber playground borders, and cannot find any
commercial weakness. There is insufficient evidence of record to demonstrate
conceptual or commercial weakness of the FLEXEDGE mark on this record under the
sixth DuPont factor.

Opposition No. 91287603
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c. Conclusion on the Strength and Weakness of Opposer’s
Mark
The record shows that the mark is inherently distinctive and therefore entitled to
the normal scope of protection afforded inherently distinctive marks under the fifth
DuPont factor. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210-11
(2000) (word marks that are arbitrary, fanciful, or suggestive are “held to be inherently
distinctive.”); accord, Two Pesos, 505 U.S. at 768. Applicant was not successful in
demonstrating that FLEX or FLEXEDGE overall is weak due to third-party
registrations or uses of similar marks under the sixth DuPont factor.
We find that the fifth and sixth DuPont factors are neutral, and accord the pleaded
mark the normal scope of protection due to inherently distinctive marks. Bell’s
Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS 452, at
*20 (finding pleaded marks inherently distinctive and according them the normal scope
of protection to which inherently distinctive marks are entitled).
2. Similarity or Dissimilarity of the Marks
The first DuPont factor concerns “[t]he similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and commercial impression.”
476 F.2d at 1361. This is always one of the most important considerations in our
analysis. See, e.g., Herbko, 308 F.3d at 1165 (“the ‘similarity or dissimilarity of the
marks in their entireties’ is a predominant inquiry”) (citation omitted). “Marks are
compared along the axes of their ‘appearance, sound, connotation and commercial
impression.’” Juice Generation, 794 F.3d at 1340 (citation omitted); accord,
i.am.symbolic, 866 F.3d at 1324.

Opposition No. 91287603
- 26 -
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, our finding must be based on the entire marks, not just part of
the marks. See, e.g., In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see
also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 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.”). “No element
of a mark is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA
1974)). 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 Co., 903 F.3d 1297, 1305 (Fed. Cir 2018) (quoting Nat’l Data Corp., 753 F.2d
at 1058).
Once again, Applicant is seeking to register the mark FLEXX and Opposer’s
pleaded mark is FLEXEDGE, both in standard characters. Undoubtedly, the marks
share the term FLEX, followed by EDGE in Opposer’s mark and a second X in
Applicant’s mark. Opposer argues that the leading term FLEX is dominant in its
mark, especially because the EDGE portion of the mark is descriptive, and Applicant
has adopted the entirety of the term.54 Opposer further argues that the extra X in
54 35 TTABVUE 24-25.

Opposition No. 91287603
- 27 -
Applicant’s mark FLEXX is insufficient to distinguish the marks.55 For example,
according to Opposer, the extra X in Applicant’s mark “does not change the
pronunciation of the mark. Nor does it materially change the visual look of the mark,
given that it just repeats the prior letter.”56 Finally, Opposer argues that minor
spelling alterations do not render the marks dissimilar.57
Applicant counters that the Board should consider the entirety of the marks, and
the shared FLEX term alone is insufficient to make them similar: “[I]t is simply
incorrect to compare marks by eliminating portions thereof and then simply
comparing the residue.”58 Applicant further argues that “the inclusion of -EDGE in
Opposer’s Mark is significant and consistent with Opposer’s family of -EDGE suffix
marks,”59 and that the additional X in Applicant’s mark and EDGE in Opposer’s mark
renders the marks visually dissimilar.60 Applicant also argues that slight differences
are sufficient because Opposer’s mark is highly suggestive61 (an argument we rejected
above).
55 Id. at 25-26
56 32 TTABVUE 8.
57 35 TTABVUE 26; 32 TTABVUE 8. Opposer cites to Hage-Boutros v. Ethika, Inc., No. 2021-
1615, 2022 U.S. App. LEXIS 3180 (Fed. Cir. Feb. 4, 2022) (nonprecedential) and Octocom Sys.
v. Hous. Comput. Servs., 918 F.2d 937 (Fed. Cir. 1990), for the proposition that “[i]ndeed,
there is abundant case law holding that more significant spelling differences is [sic] still
insufficient to create a meaningful distinction in the overall similarity of the marks.” 35
TTABVUE 26. Although both cases found likelihood of confusion between the marks at issue,
neither states this proposition.
58 31 TTABVUE 17.
59 Id. at 19.
60 Id. at 20.
61 Id.

Opposition No. 91287603
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We have considered both parties’ arguments carefully and find that the respective
marks are confusingly similar. The term FLEX (of which FLEXX is a misspelling), is
contained and pronounced the same in both marks, and appears first in Opposer’s
mark FLEXEDGE where it is most likely to be noticed and impressed on purchasers’
memories. See Detroit Athletic, 903 F.3d at 1303 (finding “[t]he identity of the marks’
initial two words is particularly significant because consumers typically notice those
words first”); Heil Co., 2024 TTAB LEXIS 494, at *76 (“it is often the first part of a
mark which is most likely to be impressed upon the mind of a purchaser and
remembered”) (citation omitted).
Given the descriptive nature of the suffix EDGE in Opposer’s mark, it may be
given less weight, reinforcing the notion that FLEX is the dominant component.
Detroit Athletic, 903 F.3d at 1305. And “if the dominant portion of both marks is the
same, then confusion may be likely notwithstanding peripheral differences.” In re
Denisi, No. 324883, 1985 TTAB LEXIS 107, at *2, cited in In re Dare Foods Inc., No.
88758625, 2022 TTAB LEXIS 92, at *12. One feature of a mark may be more
significant than another, and it is not improper to give more weight to this dominant
feature in determining the commercial impression created by the mark, provided the
ultimate conclusion rests on a consideration of marks in their entireties. Monster
Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *44-45.
We are not persuaded by Applicant’s reliance on other cases in which the Board
found that other FLEX-formative marks for different goods are unlikely to be

Opposition No. 91287603
- 29 -
confused.62 Prior decisions in registering other marks have little evidentiary value
and are not binding upon the USPTO or the Board. We must assess the registrability
of Applicant’s mark on its own merits and on the record in this case. Perry v. Gen.
Conf. Corp. of Seventh-day Adventists, No. 92017554, 1996 TTAB LEXIS 41, at
*48 (“As often stated, each case must be decided on its own facts. In reaching our
decision we are, of course, confined to the record introduced by the parties.”). The
registration of different marks on different records is not persuasive.
In sum, the shared dominant term FLEX renders the marks similar in at least
sight and sound. The descriptive term EDGE in Opposer’s mark and the extra
unpronounceable X in Applicant’s mark add differences but they are not significant
enough to dispel the overall similarity of the marks. Accordingly, the first DuPont
factor weighs in favor of likelihood of confusion.
3. Similarity or Dissimilarity of the Goods
We continue our analysis with the second DuPont factor, which “considers ‘[t]he
similarity or dissimilarity and nature of the goods or services as described in an
application or registration.” Detroit Athletic, 903 F.3d at 1306 (quoting DuPont, 476
F.2d at 1361); Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS
464, at *24.
“We begin with the identifications of … [goods] in the registration and application
under consideration.” In re OSF Healthcare Sys., No. 88706809, 2023 TTAB LEXIS
353, at *10 (cleaned up; citation omitted). As a reminder, Applicant’s goods are:
62 31 TTABVUE 21-22.

Opposition No. 91287603
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“playground equipment, namely, climbing units; playground equipment, namely,
barriers between playground areas; playground equipment, namely, nets.” The goods
identified in the ’264 Registration are “non-metallic polymeric landscape borders,
namely, plastic landscape edging for sports fields, playgrounds, parks and
recreational areas.” We also consider Opposer’s prior common law rights for rubber
playground borders.
Registration may be refused as to an entire class of goods if an applicant’s mark
as used in connection with any of its identified goods in that class is likely to cause
confusion with the registrant’s mark for any of the goods listed in the pleaded
registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir.
1983) (holding that a single good from among several may sustain a finding of
likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335,
1336 (CCPA 1981) (indicating that likelihood of confusion must be found if there is
likely to be confusion with respect to any item that comes within the identification of
goods in the application).
Opposer argues that the “plastic landscape edging for … playgrounds” in the
identification of goods in its registration is overlapping with the “playground
equipment, namely, barriers between playground areas” identified in the application
– that they are “two ways of describing the same thing.”63 Opposer points to its
63 35 TTABVUE 28.

Opposition No. 91287603
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marketing materials, shown below, where it describes FLEXEDGE products as
“Rubber Containment Barriers for playground applications”:64
Thus, Opposer equates the word “barrier” in Applicant’s identification to “landscape
edging” in Opposer’s identification.65
Applicant refutes this argument with the testimony of Mr. Osterberg, who
explains the nature of the “barriers” in Applicant’s identification. He explains that
the “barriers” are three-dimensional, can be installed in any orientation and enhance
physical play experiences. FLEXX products are designed, manufactured, and
installed to create openings which provide a highly visible net lattice structure, which
64 Id. (citing 27 TTABVUE 308, identical to the public filing at 28 TTABVUE 308).
65 See also 32 TTABVUE 9-10 (arguing a playground barrier is the same as a playground
border). Opposer cites to an internet article by website address in support of its argument.
See 35 TTABVUE 28 n.1. We have not located this article in the evidence made of record
during Opposer’s trial period. Merely providing web addresses or hyperlinks is insufficient
to make underlying webpages of record, and the Board does not take judicial notice of
evidence at website links. In re ADCO Indus. – Techs., L.P., No. 87545258, 2020 TTAB LEXIS
7, at *4; In re Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *27 n.21
(Board does not consider websites for which only links are provided). Accordingly, we have
not considered the link or the referenced article.

Opposition No. 91287603
- 32 -
can be used as an accessible route for children.66 He provided the following images of
some of the playground “barriers” in question:
In the absence of other evidence, we turn again to the dictionary for assistance.
MERRIAM-WEBSTER DICTIONARY defines “edging” as “something that forms an edge or
border.”67 An “edge” is “the line where an object or area begins or ends.”68 A “border”
is “an outer part or edge” or a “boundary” (which is defined as “something that
indicates or fixes a limit or extent.”).69 A “barrier,” however, is “something material
that blocks or is intended to block passage.”70 The images of Opposer and Applicant’s
products are consistent with the dictionary definitions of the pertinent terms in the
parties’ respective identifications: that is, Opposer’s “landscape edging” (whether
constructed of plastic or rubber) are flexible borders placed on the ground that define
66 29 TTABVUE 65-66 (Osterberg Decl. ¶¶ 10-11).
67 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/edging, accessed
May 21, 2026).
68 Id. (www.merriam-webster.com/dictionary/edge, accessed May 21, 2026).
69 Id. (www.merriam-webster.com/dictionary/border, accessed May 21, 2026); id.
(www.merriam-webster.com/dictionary/ boundary, accessed May 21, 2026).
70 Id. (www.merriam-webster.com/dictionary/barrier, accessed May 21, 2026).

Opposition No. 91287603
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the borders of a play space. Applicant’s “barriers,” however, block children from
falling off of structures, and also act as climbing structures. These products neither
are the same, nor do they serve the same purpose.
This is not the end of the story, however, because products that are not identical
still may be related – for example, they may complementary, in that they are used
together or used by the same purchasers. Opposer argues that its “‘plastic landscape
edging for … playgrounds’ and Applicant’s ‘playground equipment’ are both integral
components of playground construction.”71 Opposer points to Applicant’s marketing
materials, which Opposer says demonstrate that Applicant sells both playground
equipment and a plastic barrier system that allows customers to “build play borders
of many shapes and sizes to define play areas and keep loose surfacing in place,” as
well as showing “playground equipment in the same physical space as landscape
edging.”72 An example of this evidence is reproduced below:73
71 35 TTABVUE 29. As a reminder, Applicant’s identified goods also include not just barriers,
but also “playground equipment, namely, climbing units;…playground equipment, namely,
nets.”
72 Id. (citing 27 TTAVBUE 489-90, 492-502, 507, located in the public version at 28 TTABVUE
412-66) (Brafford Decl. Exh. 11). The quoted language appears at 28 TTABVUE 431.
73 28 TTABVUE 424.

Opposition No. 91287603
- 34 -
Another example is shown in Opposer’s marketing materials for FLEXEDGE
products, shown above.74 In addition, Opposer notes that, having acquired the assets
of Childforms, it now sells both commercial playground equipment including pre-
designed structures, and individual playground components including playground
borders.75 The evidence confirms that Childforms sells both playground equipment
(including playground net structures) and playground borders, sometimes together
in a package.76 The same evidence also shows that the goods are used in combination
as part of playground designs.
Goods which are “used in combination” are complementary, and “complementary
use has long been recognized as a relevant consideration in determining a likelihood
74 See supra image at note 64.
75 35 TTABVUE 16 (citing Brafford Decl. ¶ 16 and Exh. 1).
76 See, e.g., 28 TTABVUE 63, 215 (Brafford Decl. Exh. 1).

Opposition No. 91287603
- 35 -
of confusion.” In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567 (Fed.
Cir. 1984). See Polo Fashions, Inc. v. La Loren, Inc., No. 91063923, 1984 TTAB LEXIS
152, at *10 (finding bath sponges and personal products such as bath oil and soap to
be closely related because they are complementary goods that are likely to be
purchased and used together by the same purchasers). “Merely because goods can be
used together is not a sufficient basis on which to find them to be complementary.
Rather, there must be some showing that customers would seek out both types of
goods for the same purpose, for example, making an outfit by matching shoes and
clothing, or making a sandwich by combining bread and cheese, to show that the
goods are complementary.” N. Face Apparel Corp. v. Sanyang Indus. Co., No.
91187593, 2015 TTAB LEXIS 328, at *46 (internal citation omitted).
The evidence of record confirms that consumers of playground equipment such as
Applicant’s playground equipment, barriers, and nets seek out and use playground
landscape edging together as part of a cohesive play space.77 Because the goods are
complementary, we conclude that consumers are likely to view them as related in the
sense of originating from a common source when offered under similar marks, and
the second DuPont factor favors likelihood of confusion.
77 We are not convinced by Applicant’s reliance on the decision in Del. Quarries, Inc. v.
PlayCore IP Sub, Inc., No. 91190282, 2013 TTAB LEXIS 348 (nonprecedential). See 31
TTABVUE 25. Not only is this case nonprecedential, but also, as we noted above, we must
assess the registrability of Applicant’s mark on its own merits and on its own record. The Del.
Quarries case concerned different goods than at issue here – “playground equipment, namely,
climbing units” and “stone, gravel or similar products, namely boulders, stone veneer, and
crushed stone for use in landscaping, building construction, and paving,” which the Board
found were at most tangentially related based on the evidence of record in that case. Del.
Quarries, 2013 TTAB LEXIS 348, at *9-10. In this case, both Opposer’s and Applicant’s goods
are explicitly identified for playgrounds, and the evidence shows they are used together.

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4. Trade Channels, Classes of Consumers, and Purchasing
Decisions
The third DuPont factor considers the “similarity or dissimilarity of established,
likely-to-continue trade channels,” and the fourth factor concerns the “conditions
under which and buyers to whom sales are made, i.e. ‘impulse’ v. careful,
sophisticated purchasing.” In re Samsung Display Co., No. 90502617, 2024 TTAB
LEXIS 258, at *17 (quoting DuPont, 476 F.2d at 1361).
Here, the evidence of record discussed above demonstrates that the same kinds of
customers – purchasers of playground equipment – buy both Opposer’s playground
edging and Applicant’s playground equipment and barriers. In addition, testimony
from Opposer and Applicant’s witnesses confirm that the same customers purchase
their products.78 The products also may be purchased together as part of a package.79
Therefore, the third DuPont factor weighs in favor of likelihood of confusion.
We turn next to the conditions under which the goods are likely to be purchased,
e.g., whether on impulse or after careful consideration, as well as the degree, if any,
of sophistication of the consumers, under the fourth DuPont factor. Purchaser
sophistication or degree of care may tend to minimize likelihood of confusion.
Conversely, impulse purchases of inexpensive goods may have the opposite effect.
Palm Bay, 396 F.3d at 1376. Applicant argues that purchasers of its products are
78 Compare 28 TTABVUE 8 (Brafford Decl. ¶ 17) (customers are schools, neighborhoods,
places of worship, residential facilities, parks, municipalities, governmental organizations,
and private businesses) with 26 TTABVUE 80 (Applicant’s Response to Interrog. No.
21) (customers are municipal parks and recreation, schools, religious organizations and
HOAs (home owners associations)).
79 See, e.g., 28 TTABVUE 63, 215 (Brafford Decl. Exh. 1).

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“professional” purchasers.80 Applicant did not introduce any evidence regarding an
elevated degree of care exercised by customers in selecting playground equipment for
children such as barrier nets or edging. Applicant’s witness did testify that “[i]n
addition to Applicant’s designers, teams from different disciplines collaborate on the
product development process: engineering, testing, installation, manufacturing,
marketing, and sales,”81 but this appears to be internal to Applicant’s employees.
Moreover, the evidence of record shows that playground “packages” are marketed for
affordability and easy installation, which might make them attractive to non-
sophisticated purchasers.82 In any event, the recitations in the application and
registration are unrestricted as to price point or type of customer.
Indeed, as Opposer points out, purchasers of Applicant’s and Opposer’s products
may be sophisticated or unsophisticated purchasers of playground equipment.83 We
must consider the perspective of the least sophisticated potential purchaser, such as
those in charge of schools, homeowners associations, and houses of worship (and not
professional playground designers). Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP,
746 F.3d 1317, 1325 (Fed. Cir. 2014).
Even assuming that Applicant’s and Opposer’s goods may involve somewhat more
thoughtful purchases because they involve children and, particularly when
80 See 31 TTABVUE 27.
81 29 TTABVUE 64 (Osterberg Decl. ¶ 4).
82 See, e.g., 28 TTABVUE 62 (Brafford Decl. Exh. 1) (“Build your own quick ship playground”;
“Building your Dream Commercial Playground doesn’t have to be complicated”).
83 32 TTAVUE 11.

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purchased as part of a playground package, may be quite expensive,84 it is settled
that even careful purchasers are not immune from source confusion, especially in
cases such as this involving similar marks and related goods. In re Rsch. & Trading
Corp., 793 F.2d 1276, 1279 (Fed. Cir. 1986) (“That the relevant class of buyers may
exercise care does not necessarily impose on that class the responsibility of
distinguishing between similar trademarks for similar goods.”).
In light of the lack of evidence of the degree of purchaser care of the least
sophisticated purchaser of these goods, we find the fourth DuPont factor to be neutral.
See Turdin v. Trilobite, Ltd., No. 94002505, 2014 TTAB LEXIS 17, at *31 (finding the
fourth DuPont factor neutral where “there is argument in the briefs on the du Pont
factor regarding the conditions of sale and purchaser sophistication, but no
evidentiary support for the arguments”).
5. Actual Confusion
The seventh and eighth DuPont factors are interrelated; the absence of evidence
of actual confusion under the seventh DuPont factor by itself is entitled to little
weight in our likelihood of confusion analysis unless there also is evidence under the
eighth DuPont factor that there has been a significant opportunity for actual
confusion to have occurred. Keystone Consol. Indus. v. Franklin Inv. Corp.,
No. 92066927, 2024 TTAB LEXIS 290, at *75-76 (citing cases). Applicant argues that
the parties’ marks “have been used concurrently since at least as early as January
84 Both Opposer’s and Applicant’s marketing materials indicate that such packages may cost
in the five or six figures. See, e.g., 28 TTABVUE 63 (Brafford Decl. Exh. 1).

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2024, and the record is devoid of any evidence of actual confusion,” despite asserted
overlapping channels of trade.85
We agree that there is no evidence of actual confusion under the seventh DuPont
factor. But we must also look at actual use under the eighth factor. In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019) (finding Board erred by failing to address
argument and evidence related to the eighth DuPont factor relating to forty years of
co-existence). Opposer argues, and we agree, that there has been no reasonable
opportunity for confusion to have occurred because Applicant’s mark FLEXX has been
in use a short period of time.86 Moreover, there is no evidence as to the nature and
extent of public exposure of the respective marks.
We find there has not been a “meaningful opportunity for actual confusion” during
the few years of concurrent use of the parties’ marks. Nike, Inc. v. WNBA Enters.,
LLC, No. 91160755, 2007 TTAB LEXIS 39, at *44 (“In addition to the relatively brief
period of contemporaneous use … there is no specific evidence regarding the nature
and extent of public exposure to this particular mark during the period of
contemporaneous use.”).
85 31 TTABVUE 36. Applicant also argues that “Opposer and its asserted Mark have also
coexisted commercially with Applicant’s continuous use of its other FLEX-formative marks
(including PEBBLEFLEX® and AQUAFLEX®) for over a decade without any instances of
consumer confusion as well.” Id. Applicant made plain copies and partial TSDR records of
these registrations of record along with testimony regarding their status and title, see 29
TTABVUE 3, 6-10 (Dunning-Harris Decl. ¶¶ 9-10, Exh. 1). Nonetheless, these are different
marks and different goods than at issue here, and they have very little probative value.
86 35 TTABVUE 36; see also 44 TTABVUE 18.

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The seventh and eighth DuPont factors are neutral in our analysis of the
likelihood of confusion.
6. Variety of Goods
Finally, one of the circumstances mentioned in the ninth DuPont factor is the
variety of goods on which a prior mark is used. “If a party in the position of plaintiff
uses its mark on a wide variety of goods, then purchasers are more likely to view a
defendant’s related good under a similar mark as an extension of the plaintiff’s line.”
DeVivo v. Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *44.
Opposer argues that this factor favors a conclusion of likelihood of confusion
because Opposer has shown actual use of its mark FLEXEDGE in connection with
“non-metallic landscape borders, landscape edging, curbs, containment barriers,
polymeric caps for concrete curbs, and polymeric ramps and mats for sports fields,
playgrounds, parks, and recreational areas, as well as sports, playground, park, and
recreational equipment – in a variety of sports and playground settings.”87 Applicant
does not address this factor.
We find Opposer’s evidence insufficient to show that Opposer has used its mark
on a such a diverse variety of goods that the ninth DuPont factor favors a finding of
likelihood of confusion, particularly because we already have found the goods to be
related. Monster Energy, 2023 TTAB LEXIS 14, at *54 (“This factor may favor a
finding that confusion is likely if the goods or services are not obviously related, but
87 35 TTABVUE 37 (citing Brafford Decl. ¶ 12).

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has less impact if the parties’ goods or services in issue are identical or closely
related.”). We therefore find the ninth DuPont factor to be neutral.
7. Summarizing the DuPont Factors
Having considered all of the arguments and evidence of record pertaining to the
relevant DuPont factors, we find that the marks are highly similar in at least
appearance and sound; Applicant’s goods and Registrant’s goods are related; and the
respective goods travel through the same channels of trade and are offered to the
same or overlapping classes of purchasers. Thus, all relevant DuPont factors weigh
in favor of a conclusion that confusion is likely. The other factors are neutral.
Decision
The opposition to Ser. No. 97511873 is sustained.