91285926•Tru Earth Environmental Products Inc. v. Macroidea Inc.
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This Opinion is Not a Precedent of the TTAB Mailed: June 29, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Tru Earth Environmental Products Inc. v. Macroidea Inc. _____ Opposition Nos. 91285926 (parent) and 91285927 _____ Brent Capehart, Palmer IP Inc., for Tru Earth Environmental Products Inc. Brian P. Kinder, The Kinder Law Group APC, for Macroidea Inc. _____ Before Wellington, English, and O’Connor, Administrative Trademark Judges. Opinion by O’Connor, Administrative Trademark Judge: Macroidea Inc. (“Applicant”) seeks registration on the Principal Register of the below marks, both in standard characters: BLUE EARTH for “laundry detergents,” in International Class 3;1 and 1 Application Serial No. 97758485, filed January 18, 2023, based on Applicant’s declaration of a bona fide intention to use the mark in commerce.
Opposition Nos. 91285926 and 91285927 - 2 - CLEAR EARTH for “fabric softeners; laundry detergents,” also in International Class 3.2 Tru Earth Environmental Products Inc. (“Opposer”) filed separate oppositions against the applications under Section 2(d) of the Trademark Act, on the ground of priority and likelihood of confusion with its mark TRU EARTH, in standard characters and stylized form, alleged to be the subject of Opposer’s prior use as well as several registrations and pending applications.3 In its answers, Applicant denied the salient allegations in the notices of opposition.4 The Board sua sponte consolidated the two cancellation proceedings, which involve the same parties and related marks.5 2 Application Serial No. 97766883 filed January 25, 2023, based on Applicant’s declaration of a bona fide intention to use the mark in commerce. 3 In each case, Opposer also included a claim for dilution under Trademark Act Sections 2 and 43(c), 15 U.S.C. §§ 1052 and 1125(c). See 1 TTABVUE 8-9 in both cases. The dilution claim in each case was dismissed after Opposer failed to respond to Applicant’s motion to dismiss that claim. See 7 TTABVUE in both cases. Citations in this opinion to the briefs and other materials in the case docket refer to TTABVUE, the Board’s public online docketing system. The number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the .pdf version of the document where the cited matter appears. 4 10 TTABVUE (Opposition No. 91285926); 8 TTABVUE (Opposition No. 91285927). The answers included an affirmative defense stating that to the extent Opposer possesses rights in the TRU EARTH mark, its rights are weak and entitled to a narrow scope of protection due to the coexistence of other similar marks registered for similar goods, and including a chart and copies of the registration certificates. We do not consider this as a true affirmative defense because it merely amplifies Applicant’s denials of Opposer’s allegations regarding strength of the mark and likelihood of confusion. See, e.g., DeVivo v. Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *3 (mere amplifications of denials not considered as separate affirmative defenses). 5 19 TTABVUE (Opposition No. 91285926, designating this as the parent case); 17 TTABVUE (Opposition No. 91285927). In the Consolidation Order, the Board noted that, “[d]espite being consolidated, each proceeding retains its separate character and requires entry of a separate judgment.… tak[ing] into account any differences in the issues raised by the respective pleadings; a copy of the decision shall be placed in each proceeding file.” Id. Unless otherwise
Opposition Nos. 91285926 and 91285927 - 3 - The oppositions are fully briefed. As plaintiff in these proceedings, Opposer bears the burden of establishing its entitlement to a statutory cause of action and its Section 2(d) claims by a preponderance of the evidence. See Stratus Networks, Inc. v. UBTA- UBET Commc’ns Inc., 955 F.3d 994, 998 (Fed. Cir. 2020) (citation omitted); Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *8. For the reasons discussed below, we dismiss the opposition as to each of Applicant’s marks. I. The Record and Evidentiary Issues The record includes the pleadings and, by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the files of Applicant’s involved applications. In addition, Opposer introduced the declaration testimony of two witnesses, with exhibits, and a notice of reliance. See Testimony Declaration of Colleen Peters (21 TTABVUE (public redacted version), 24 (confidential)); Testimony Declaration of Brad Liski (22 TTABVUE (public redacted version), 20 (confidential)); Notice of Reliance (23 TTABVUE).6 indicated, the TTABVUE citations in this opinion are to Opposition No. 91285926, the parent case. 6 Despite the Board’s earlier consolidation order directing the parties to submit filings only in the parent case, Opposer submitted separately captioned versions of its declarations and notice of reliance in both cases. Compare 20-24 TTABVUE (Opposition No. 91285926) with 18-22 TTABVUE (Opposition No. 91285927). See also 31 TTABVUE 1 (reminding the parties to file trial submissions only in parent case with a caption listing both cases). In its brief, Opposer refers almost exclusively to its evidentiary submissions in the parent case, see 34 TTABVUE, which we find to be virtually identical in substance to those in the child case. The parties each submitted evidence designated as confidential. When referencing such materials, we indicate where the confidential and redacted, publicly available versions are docketed. Unless otherwise noted, all citations to the record are to the publicly available documents.
Opposition Nos. 91285926 and 91285927 - 4 - Applicant introduced the declaration testimony of one witness and five notices of reliance. See Testimony Declaration of Tien Le (25 TTABVUE); First through Fifth Notices of Reliance (26-30 TTABVUE). Opposer also submitted the Rebuttal Testimony Declaration of Brad Liski (32 TTABVUE) and a Rebuttal Notice of Reliance with exhibits (33 TTABVUE). Before addressing the merits, we discuss evidentiary issues relating to Opposer’s pleaded registrations and certain objections lodged by the parties. A. Opposer’s Pleaded Registrations In its notices of opposition, Opposer pleaded ownership of two registrations and six applications for TRU EARTH in standard characters and stylized form, all on the Principal Register, for various goods.7 In its Notice of Reliance, Opposer provided documents relating to the same eight trademark properties, specifically, plain copies of five registrations (the same two pleaded in the notices of opposition and three corresponding to pleaded applications that had since matured to registration) as well as Trademark Status and Document Retrieval (TSDR) printouts for three pending applications.8 7 See 1 TTABVUE 1-4, 7-8 (¶ 7), 18-23 (Exs. C-D) (copies of Registration Nos. 6206861 and 6206862); 24-30 (Ex. E) (USPTO Trademark Electronic Search System (TESS) printouts for Serial Nos. 90979657, 90979656, 90976906, 90550200, 90976907 and 90552586). 8 See 23 TTABVUE 2-4, 7-25 (Exs. 3-10). Pleaded application Ser. No. 90550200 was subsequently abandoned.
Opposition Nos. 91285926 and 91285927 - 5 - Two pleaded registrations, Registration Nos. 6206861 (TRU EARTH in standard characters) and 6206862 ( ), cover “laundry detergents,” in International Class 3.9 However, there are two problems with the copies of those registrations submitted by Opposer. First, they are undated plain copies of the certificates of registration that do not show the current status or title of the registrations, both of which issued on November 24, 2020, nearly three years before they were pleaded in the notices of opposition filed July 7, 2023 and approximately four and half years before they were submitted with Opposer’s Notice of Reliance. Evidence of the status and title of a registration must be reasonably contemporaneous with its filing date with the Board. See Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *12 n.16 (undated copies of USPTO electronic database records not sufficient to make a registration of record because the Board could not ascertain whether they were “substantially” or “reasonably” contemporaneous with the filing of the notice of opposition); Hard Rock Cafe Int’l (USA) Inc. v. Elsea, No. 74593528, 2000 TTAB LEXIS 577, at *21 (status and title copies prepared more than three years earlier were not reasonably contemporaneous with filing of notice of opposition); Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). 9 See 1 TTABVUE 18-22 (Exs. C and D in both oppositions); see also 23 TTABVUE 7-10 (Exs. 3 and 4 to Notice of Reliance in Opposition No. 91285926); 22 TTABVUE 7-10 (Exs. 3 and 4 to Notice of Reliance in Opposition No. 91285927).
Opposition Nos. 91285926 and 91285927 - 6 - Moreover, these registration copies do not evidence title in Opposer, but identify another company, My Passion Media Inc., as the owner.10 See, e.g., Shenzhen IVPS, 2022 TTAB LEXIS 383, at *12 n.16 (noting further defect in copies of registration certificates attached to notice of opposition was “that they do not reflect Opposer as the owner”). Nor is there any evidence in the record establishing that the registrations were assigned to Opposer or that any such assignment was recorded.11 Among the plain copies of registrations that Opposer submitted with its Notice of Reliance were three registrations that list Opposer as the owner. These include Registration No. 7715528 for TRU EARTH in standard characters (the “’528 Registration”) for “detergent soap; detergents for dishwashing machines; dishwasher detergents; multi-surface cleaner,” in International Class 3.12 The ’528 Registration issued on the Principal Register on March 4, 2025, which was reasonably contemporaneous with its filing by Notice of Reliance on June 26, 2025, such that the 10 See id. 11 See id. Although Opposer’s CEO testified about Opposer’s use and enforcement of the TRU EARTH marks, he did not discuss the trademark registrations. See, e.g., 22 TTABVUE 5-7 (Liski Decl. ¶¶ 4-7); 32 TTABVUE 4-5 (Liski Rebuttal Decl. ¶¶ 4-6). Although Opposer pleaded ownership of the registrations, see 1 TTABVUE 7-8, ¶ 7 in Opposition No. 91285926; 1 TTABVUE 7-8, ¶ 8 in Opposition No. 91285927, Applicant denied these allegations. See 10 TTABVUE 3, ¶ 7; 8 TTABVUE 3, ¶ 8, respectively. There are several ways to properly introduce a pleaded registration, with its current ownership information, into the record. For example, a plaintiff may obtain a copy or printout of the registration along with “a current copy of information from the electronic database records of the Office showing the current status and title of the registration” and then submit or file this: (1) with the notice of opposition, (2) under a notice of reliance or (3) with testimony identifying the registration. See Trademark Rule 2.122(d)(1)-(2), 37 C.F.R. § 2.122(d)(1)-(2); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 704.03(b)(1) (2026). Here, Opposer did none of those things. 12 23 TTABVUE 13.
Opposition Nos. 91285926 and 91285927 - 7 - ’528 Registration has been properly made of record. See, e.g., United Global Media Grp., Inc. v. Tseng, No. 91200786, 2014 TTAB LEXIS 348, at *13 (registration issued on March 29, 2011 was reasonably contemporaneous with notice of opposition filed on July 20, 2011).13 B. Requests to Exclude Evidence under the Estoppel Sanction Both parties raise evidentiary objections in appendices to their briefs, which we address before turning to the merits. We first consider requests to exclude certain evidence as an estoppel sanction. 1. Applicable Law “Except as otherwise provided, and wherever applicable and appropriate, procedure and practice in inter partes proceedings shall be governed by the Federal Rules of Civil Procedure.” Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a). Under the Federal Rules of Civil Procedure, each party must serve initial disclosures that identify “each individual likely to have discoverable information ... that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment” and “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or 13 Because we find that the ’528 Registration is properly of record, we need not consider the two other registrations in the name of Opposer that were submitted with its Notice of Reliance, for “fertilizers” and similar goods in International Class 1 and “toothpaste; solid toothpaste tablets,” in International Class 3. See 23 TTABVUE 11 and 15 (copies of Registration Nos. 7484292 and 7484291, respectively, both issued August 27, 2024). Cf. Sock It to Me v. Fan, No. 91230554, 2020 TTAB LEXIS 201, at *20-21 (focusing likelihood of confusion analysis on the opposer’s mark that was closest to the applicant’s marks).
Opposition Nos. 91285926 and 91285927 - 8 - defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1); TBMP § 401.02. As with responses to discovery requests, parties are required to supplement their initial disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). See Kate Spade LLC v. Thatch, No. 91216585, 2018 TTAB LEXIS 82, at *5-6; see also TBMP § 408.03 (“Duty to Supplement Disclosures and Discovery Responses”). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see Kate Spade, 2018 TTAB LEXIS 82, at *5-6 (citing Great Seats, Inc. v. Great Seats, Ltd., No. 91189540, 2011 TTAB LEXIS 365, at *11-12); see also Heil Co., 2024 TTAB LEXIS 494, at *23-24; TBMP § 527.01(e) (“A party that fails to provide information, or provides an untimely supplement, may be precluded from using that information or witness at trial unless the failure to disclose was substantially justified or is harmless.”). In determining whether evidence should be excluded under Fed. R. Civ. P. 37(c)(1), the Board may be guided by the following factors: “1) the surprise to the party against whom the evidence would be offered; 2) the ability of that party to cure the surprise; 3) the extent to which allowing the testimony would disrupt the trial; 4) importance of the evidence; and 5) the nondisclosing party’s explanation for its failure to disclose
Opposition Nos. 91285926 and 91285927 - 9 - the evidence.” Great Seats, 2011 TTAB LEXIS 365, at *11-12 (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)). 2. Opposer’s Request to Exclude Opposer asks that we preclude Applicant from relying on certain third-party registrations referenced in the Testimony Declaration of Tien Le (25 TTABVUE) and attached to Applicant’s First Notice of Reliance (26 TTABVUE) on the ground of estoppel due to Applicant’s failure to disclose those registrations before trial.14 Although not readily apparent from Opposer’s argument, most of the third-party registrations that Applicant listed in the Le declaration or attached to its First Notice of Reliance were provided to Opposer’s counsel before discovery.15 Indeed, both parties’ presentation of the evidence and arguments relating to third-party registrations is disorganized and confusing. Applicant’s trial submissions include two lists of third party registrations that overlap, but only in part. Opposer’s lengthy objections do not clearly identify the registrations sought to be excluded for belated disclosure,16 which alone is a basis to overrule the objection. Cf. Sage Therapeutics v. SageForth Psychological Servs., No. 91270181, 2024 TTAB LEXIS 139, at *5-6 & n.11 (lengthy, detailed objections to evidence that clearly contains both admissible factual testimony and inadmissible argument not helpful to the Board). 14 See 34 TTABVUE 29-34, Appendix I to Opposer’s brief; 36 TTABVUE 22 (Annexure C to Opposer’s Reply). 15 See 10 TTABVUE 5-36 (Answer in parent case). 16 See 34 TTABVUE 29 (“More specifically, Opposer objects to specific third-party registrations for marks as set out in the Testimony Declaration of Mr. Tien Le, see 25 TTABVUE (parent case), and in its Notice of Reliance, See 26 TTABVUE (parent case) on the grounds of estoppel.”), 30-52.
Opposition Nos. 91285926 and 91285927 - 10 - In support of its objection, Opposer argues that Applicant failed to provide the additional third-party trademark registrations included in the Le declaration and/or First Notice of Reliance in either Applicant’s initial disclosures or responses to Opposer’s discovery requests, or supplements thereto.17 Specifically, Opposer argues that Applicant failed to produce the third-party registrations in response to the following discovery requests: Interrogatory No. 35.: If YOU contend that the term EARTH is commonly USED by third parties in connection with goods related to those sold by RESPONDING PARTY, please provide a detailed explanation of the basis for YOUR contention. REQUEST FOR PRODUCTION NO. 14. Please produce DOCUMENTS sufficient to IDENTIFY each PERSON (third parties) who YOU believe is USING a MARK that is comprised of or incorporates the term TRU in connection with goods related to the goods that YOU purport to USE in connection with the OPPOSER’S MARKS, as set out in the NOTICE OF OPPOSITION, that is challenging RESPONDING PARTY’S MARK in these proceedings. REQUEST NO. 15. Please produce DOCUMENTS sufficient to IDENTIFY each PERSON (third parties) who YOU believe is USING a MARK that is comprised of or incorporates the term EARTH in connection with goods related to the goods that YOU purport to USE in connection with the OPPOSER’S MARKS, as set out in the NOTICE OF OPPOSITION, that is challenging RESPONDING PARTY’S MARK in these proceedings. 17 See 34 TTABVUE 29-32.
Opposition Nos. 91285926 and 91285927 - 11 - REQUEST NO. 16. Please produce DOCUMENTS sufficient to IDENTIFY any searches (including trademark searches) by or on behalf of RESPONDING PARTY that RELATE TO the RESPONDING PARTY’S MARK.18 Applicant objected to each of these requests on various grounds, including that: Responding Party is the owner of a pending intent-to-use application, Propounding Party asserts two registrations and seven pending applications in these proceedings. When Responding Party served properly propounded requests production on Propounding Party, Propounding Party essentially duplicated the requests and served an identical set on Responding Party, yet then proceeded to object to all requests and fail to produce documents. Accordingly, Responding Party objects to Propounding Party’s interrogatory on equitable grounds of estoppel. See Miss America Pageant v. Petite Productions, Inc., 17 USPQ2d 1067, 1069 (TTAB 1990) (petitioner estopped to challenge respondent’s interrogatories as excessive in number having served virtually identical set on respondent).19 In view of its objections, Applicant did not respond to the substance of the interrogatory and stated that it would not produce documents responsive to the document requests.20 In his declaration, Mr. Le testified that in or around late 2022, he began to develop the concept for a laundry product and undertook “to select a trademark that conveyed 18 Id. at 30-33. 19 Id. 20 See id.
Opposition Nos. 91285926 and 91285927 - 12 - an earth-friendly connotation.”21 In addition to searching on Amazon.com and Google,22 Mr. Le testified that 7. In or around late 2022 or early 2023 when I was investigating the BLUE EARTH and CLEAR EARTH proposed names, I also searched the records of the U.S. Patent and Trademark Office to determine if there were any pending applications or existing registrations in Class 3 for trademarks that were confusingly similar to either name. As I expected, during my investigation, I uncovered many pending applications and existing registrations for trademarks that included the word EARTH within the trademark, including, without limitation, the following: [providing a list of U.S. trademark registrations for marks with the word EARTH]. 8. I was assured by the apparently peaceful co-existence of so many EARTH type marks in the laundry space in both the marketplace and the records of the U.S. Patent and Trademark Office. Accordingly, I selected the BLUE EARTH and CLEAR EARTH domain names and trademarks because I believed that they were safe to use as a trademark containing the word EARTH to convey an earth-friendly [ ] just as so many others had in the industry previously and were contemporaneously doing in the present.23 Applicant does not deny failing to disclose before trial all of the third-party registrations in the Le declaration and/or Applicant’s First Notice of Reliance, but 21 25 TTABVUE 3, Le Decl. ¶ 4. 22 25 TTABVUE 3-5, Le Decl. ¶ 6. Mr. Le testified that he did not have the original results from the Amazon.com and Google searches, but on August 22, 2025 he conducted similar searches. Id. Although stating that he was attaching the results of the Amazon.com and Google searches as exhibits to his declaration, no exhibits were attached. However, the Amazon.com and Google search results appear to be attached to Applicant’s Fifth Notice of Reliance. See 30 TTABVUE 255-76 (Exs. 73 and 74). Opposer does not object to the results of the Amazon.com or Google searches. See 34 TTABVUE 29-32 (objecting only to third-party registrations); 36 TTABVUE 22 (reply brief discussing “Opposer’s objection to Applicant’s failure to disclose all third-party registrations”). 23 25 TTABVUE 5-10 (Le Decl. ¶¶ 7-8).
Opposition Nos. 91285926 and 91285927 - 13 - argues that exclusion is not warranted.24 With respect to its initial disclosures, Applicant contends that any argument it failed to disclose the registrations in its initial disclosures is unsubstantiated because Opposer failed to provide a copy of those disclosures.25 Applicant further argues that Opposer falsely contends that Applicant failed to disclose certain third-party registrations in its initial disclosures, and in any event, Applicant made clear that the listed registrations represented only some of those that Applicant might rely upon, such that Opposer should not be surprised.26 With regard to discovery in particular, Applicant states: Opposer interposed wholly inappropriate objections to Applicant’s discovery, then duplicated that discovery and served the same on Applicant. Applicant met and conferred with Opposer who stood on their objections, but insisted that Applicant respond. Applicant asserted that Opposer was equitably estopped and Opposer never moved to compel otherwise. Accordingly, there is no basis for Opposer’s contention that Applicant failed to properly produce discovery in this case. Further, even if that were not the case, there is no surprise or harm to Opposer given that Opposer is on constructive notice of the third-party registrations and cannot feign ignorance, surprise or harm. See 15 U.S.C. § 1072.27 To the extent Opposer seeks to exclude third-party registrations solely on the basis of a deficiency or inadequacy as to Applicant’s initial disclosures, we are not persuaded. Opposer failed to provide the Board with Applicant’s initial disclosures and we thus have no way to determine if they were deficient in any manner with 24 35 TTABVUE 28. 25 Id. 26 Id. 27 Id.
Opposition Nos. 91285926 and 91285927 - 14 - regard to those registrations. State Permits, Inc. v. Fieldvine, Inc., No. 92075095, 2024 TTAB LEXIS 291, at *11 (petitioner’s objection to evidence on the ground it was not produced in response to discovery requests “necessarily fail[ed] because petitioner did not provide the Board with the relevant discovery requests and response to allow it to determine if there was a failure to provide information or materials that warrant[ed] the [estoppel] sanction”); RLP Ventures, LLC v. Panini America, Inc., No. 91268816, 2023 TTAB LEXIS 380, at *13 (denying estoppel sanction motion where movant failed to identify discovery requests requiring production of specified exhibits and failed to include copies of relevant disclosures or discovery requests).28 We also are not persuaded by Opposer’s argument seeking to exclude some of the third-party registrations because they should have been produced in discovery. Applicant responded to Opposer’s discovery requests regarding third-party registrations and trademark searches by objecting, providing no information in response to the interrogatory and responding to each document request by stating that it “will not produce documents responsive to this request.”29 Opposer does not argue that Applicant made any representation that the requested information and documents did not exist. And, importantly, Opposer did not move to compel responses to its discovery requests, which would have tested Applicant’s objections to the relevant discovery requests. If Opposer believed Applicant’s discovery responses were inadequate, “it was incumbent upon [Opposer] to file a motion to compel adequate 28 Opposer’s provision of the initial disclosures with its reply brief was too late because it deprived Applicant of the opportunity to respond. 29 See 34 TTABVUE 30-33.
Opposition Nos. 91285926 and 91285927 - 15 - responses.” Vans, Inc. v. Branded, LLC, No. 92066859, 2022 TTAB LEXIS 294, at *14-15 (citing Midwestern Pet Foods Inc. v. Société des Produits Nestle S.A., 685 F.3d 1046 (Fed. Cir. 2012)); TBMP § 523.04 (“If a party that served a request for discovery receives a response thereto that it believes to be inadequate, but fails to file a motion to challenge the sufficiency of the response, it may not thereafter be heard to complain about the sufficiency thereof.”). See also H.D. Lee Co. v. Maidenform Inc., No. 91168309, 2008 TTAB LEXIS 21, at *6-7 (where the opposer did not respond to discovery requests, and the applicant did not move to compel, “applicant’s own inaction ensured that applicant would not see opposer’s evidence for the first time until trial. Under such circumstances, applicant cannot claim unfair surprise.”); Linville v. Rivard, No. 92019874, 1996 TTAB LEXIS 32, at *4 (permitting introduction of documents by respondent that were within the scope of petitioner’s discovery request, but to which respondent had objected as vague and burdensome, where petitioner did not move to compel), aff’d, 133 F.3d 1446 (Fed. Cir. 1998). Nor can Opposer claim unfair surprise by Applicant’s reliance on such registrations. From the filing of its answers through to trial, Applicant took the position that there is a crowded field of EARTH-formative marks for laundry detergent. Opposer’s objection to the third-party registrations in Applicant’s First Notice of Reliance and the Le declaration is overruled and its request to exclude this evidence is denied.30 30 In any event, some of the evidence is cumulative because the marks are the subject of other registrations disclosed in Applicant’s answers (e.g., EARTH ESSENTIALS and EARTH OIL,
Opposition Nos. 91285926 and 91285927 - 16 - 3. Applicant’s Request to Exclude Applicant objects to the Testimony Declaration of Brad Liski (22 TTABVUE, 20 TTABVUE (confidential)), stating: Opposer’s March 18, 2024, Initial Disclosures identified a single witness in this case, namely, Colleen Peters. See 28 TTABVUE, Ex. 52-53. Long after the close of discovery, and just weeks before Opposer filed testimony in these proceedings, Opposer served Supplemental Initial Disclosures on May 9, 2025, that – for the first time – identified Brad Liski (among others) as a witness. See 28 TTABVUE, Ex. 54-55. Applicant objects to the timeliness of these supplemental disclosures and moves to strike the Declaration of Brad Liski (22 TTABVUE).31 Opposer responds by stating that Mr. Liski was disclosed in a supplement to Opposer’s initial disclosures at a time when Applicant could object or seek to reopen discovery, but it did neither.32 Opposer argues that Applicant could not have been surprised by submission of Mr. Liski’s testimony declaration because he was disclosed in a timely supplement to Opposer’s initial disclosures, and therefore there was no surprise to cure. For this reason, Opposer continues, there would have been minimal disruption to the trial if Applicant had sought to reopen discovery, because the trial see 10 TTABVUE 6, 17, 27). In addition, no copies were provided of several registrations listed in Mr. Le’s declaration, Reg. Nos. 4701824 (EARTH LINE), 6777116 (BYEARTH), 4409398 (EARTH E & design), 6921893 (EARTH ZERO PLASTIC) and 3188923 (SAFELY CLEANING PLANET EARTH). We do not consider these registrations that were merely listed with no copies made of record by Applicant. See TBMP § 704.03(b)(1)(B) and cases cited therein (party may not make a third-party registration of record simply by introducing a list of third-party registrations that includes it). Moreover, the volume of third-party registration and use evidence is such that even if we were to exclude some of the registrations as not disclosed before trial this would not change our conclusion on weakness of Opposer’s mark. 31 35 TTABVUE 27. 32 36 TTABVUE 20.
Opposition Nos. 91285926 and 91285927 - 17 - period had not yet opened.33 Opposer also argues that Mr. Liski’s evidence is of great importance to its case, and states that [D]uring the preparation for trial, it was determined that Mr. Liski would be the best witness as he would be able to address the same issues of the other listed witnesses. Once it was determined he would be a witness, Opposer promptly supplemented its initial disclosures to identify him. The supplementation was done well before the pre- trial disclosure deadline giving Applicant sufficient time to object to Opposer, seek to reopen discovery in order to ascertain the extent of Mr. Liski’s knowledge, or seek other relief from the Board. Applicant chose to do nothing until its trial brief.34 We agree with Opposer that exclusion is not warranted here. It was incumbent on Applicant to have raised this objection before its trial brief. Cf. Societe Des Produits Nestle S.A. v. Taboada, No. 91232597, 2020 TTAB LEXIS 267, at *23 (objection that evidence was not adequately disclosed in pretrial disclosures overruled as untimely and waived when first raised in trial brief; objection is curable and should have been made via motion to strike promptly after testimony declaration and exhibits were filed); TBMP §§ 707.03(a), (b); 707.04. By waiting until its trial brief to raise its objection, Applicant deprived Opposer of the ability to cure any potential prejudice, such as agreeing to a consented motion to reopen the discovery period so that Applicant could depose Mr. Liski. Applicant’s objection to Mr. Liski’s declaration is untimely and has been waived or forfeited. 33 Id. 34 Id. Applicant states that Opposer served its Supplemental Initial Disclosures on May 9, 2025, 35 TTABVUE 27, which was approximately six weeks after discovery closed on March 29, 2025 and nearly three weeks before Opposer’s trial period opened on May 28, 2025. See 19 TTABVUE 4.
Opposition Nos. 91285926 and 91285927 - 18 - C. Other Evidentiary Objections Both parties also raise other evidentiary objections. Applicant objects to the Testimony Declaration of Colleen Peters (21 TTABVUE, 24 TTABVUE (confidential)) as hearsay because she first became employed by Opposer on May 31, 2022 and lacks personal knowledge of any facts occurring prior to that date.35 Applicant also objects to all of the exhibits to the Peters declaration on grounds of authentication, foundation and hearsay.36 Opposer responds that Ms. Peters testified not as to her own knowledge of the facts, but as an authenticating witness for the documents attached to her declaration.37 To the extent these objections are procedural in nature, Applicant should have lodged them promptly upon receiving Ms. Peters’ declaration during Opposer’s testimony period, when Opposer could have sought to cure any defects in the evidence, but Applicant did not do so. Further, upon review of the Peters declaration, we note that after stating her role and responsibilities as Executive Assistant to Applicant’s CEO Brad Liski, Ms. Peters describes documents attached to the declaration and their general significance in this matter.38 Such testimony is generally in the nature of an authenticating witness. See Kate Spade, 2018 TTAB LEXIS 82, at *10 (“authentication testimony for documents does not add 35 35 TTABVUE 27. 36 Id. Applicant’s brief also states that “Applicant objects to Opposer’s Notices of Reliance,” see 35 TTABVUE 8 (referring to objections set forth in Annex A), but Annex A only contains objections to the Liski and Peters declarations. See id. at 27. Therefore, any objection to Opposer’s Notice of Reliance has been waived or forfeited. 37 36 TTABVUE 21. 38 See 21 TTABVUE 5-6, 24 TTABVUE (confidential).
Opposition Nos. 91285926 and 91285927 - 19 - substantively to the evidence”). The Board is capable of assessing the proper evidentiary weight to be accorded both the Peters testimony and exhibits, taking into account the concerns raised by Applicant. Luxco, Inc. v. Consejo Regulador del Tequila, A.C., No. 91190827, 2017 TTAB LEXIS 6, at *4; see also U.S. Playing Card Co. v. Harbro, LLC, No. 91162078, 2006 TTAB LEXIS 484, at *9 (“[B]ecause an opposition is akin to a bench trial, the Board is capable of assessing the proper evidentiary weight to be accorded the testimony and evidence, taking into account the imperfections surrounding the admissibility of such testimony and evidence.”). Applicant’s objection to the Peters declaration and attached exhibits is denied. Opposer objects to certain third-party registrations submitted by Applicant based on grounds such as lack of probative value.39 We take a similar approach to those objections; that is, we do not exclude the registrations outright but consider Opposer’s objections when assessing the evidence, addressing the objections in our analysis as appropriate. II. Opposer’s Entitlement and Priority Establishing entitlement to a statutory cause of action is a threshold requirement in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020). To establish entitlement to a statutory cause of action, Opposer must demonstrate that it has: (1) an interest falling within the zone 39 See 34 TTABVUE 35-52 (Appendix II and Appendix III to Opposer’s Brief listing individual objections to third-party registrations); see also 36 TTABVUE 12-19 (Annexure A to Opposer’s Reply, Consolidated List of Third-Party Marks cited by the Applicant).
Opposition Nos. 91285926 and 91285927 - 20 - of interests protected by the statute, and (2) a reasonable belief in damage proximately caused by the registration of the mark. Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359, 1367 (Fed. Cir. 2025) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-134 (2014)), cert denied, __ U.S. __ (April 20, 2026) (No. 25-435), 2026 U.S. LEXIS 1831; Corcamore, 978 F.3d at 1304- 07; see also Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *18. Here, as discussed above, Opposer owns the ’528 Registration for the mark TRU EARTH for “detergent soap; detergents for dishwashing machines; dishwasher detergents; multi-surface cleaner” and alleges a likelihood of confusion with Applicant’s marks BLUE EARTH for “laundry detergents” and CLEAR EARTH for “fabric softeners; laundry detergents.” Additionally, Opposer’s witness Mr. Liski testified that “TRU EARTH-branded laundry strips and related goods have been sold in the United States [ ] at least as early as May, 2019.”40 Opposer has shown a plausible Section 2(d) likelihood of confusion claim as to both of Applicant’s marks. See Conopco, Inc. v. Transom Symphony OpCo, LLC, No. 91256368, 2022 TTAB LEXIS 194, at *11. Therefore, Opposer has established its entitlement to oppose Applicant’s applications. N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., No. 91189692, 2015 TTAB LEXIS 96, at *8 (“Opposer’s standing is established with respect to its likelihood of confusion and dilution claims by its registrations ... which the record shows to be valid and subsisting, and owned by Opposer.”) (citing 40 22 TTABVUE 5 (Liski Decl. ¶ 4).
Opposition Nos. 91285926 and 91285927 - 21 - Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)); see also Corcamore, 978 F.3d at 1306. Because Opposer properly made of record its valid and subsisting pleaded ’528 Registration, which Applicant has not sought to cancel by counterclaim, Opposer’s priority is not at issue for the mark and goods identified in that registration. 15 U.S.C. § 1052(d) (statute provides for a claim against a mark “which so resembles a mark registered in the Patent and Trademark Office ... 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”); see King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974); Cent. Garden & Pet Co. v. Doskocil Mfg. Co., No. 91188816, 2013 TTAB LEXIS 439, at *11 (citing Massey Junior College, Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 1403 n.6) (“[P]rior use need not be shown by an opposer relying on a registered mark unless the applicant counterclaims for cancellation.”)). II. Likelihood of Confusion A. Applicable Law “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 [or] mistake, or to deceive.” In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours & Co., 476 F.2d
Opposition Nos. 91285926 and 91285927 - 22 - 1357, 1361 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”). “Whether a likelihood of confusion exists between an applicant’s mark and a previously registered mark is determined on a case-by-case basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1319 (Fed. Cir. 2018) (citations omitted). We consider all DuPont factors for which there is argument and evidence of record. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See 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.”) (citing Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 1370 (Fed. Cir. 2002)). “Each case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). However, in any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See 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.”). It is sufficient for a conclusion of likelihood of confusion as to a class of goods in the application if confusion is likely with respect to any of the goods identified in that
Opposition Nos. 91285926 and 91285927 - 23 - class. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp. Inc., 648 F.2d 1335, 1336 (CCPA 1981). We focus on the standard character mark TRU EARTH in Opposer’s ’528 Registration for goods including “detergent soap,” because this mark is most similar to Applicant’s BLUE EARTH and CLEAR EARTH marks, both of which are for goods including “laundry detergents.” If we find that confusion is likely between one or both of Applicant’s marks and the mark in Opposer’s ’528 Registration, we need not consider whether confusion would be likely with Opposer’s other pleaded marks. See Heil Co., 2024 TTAB LEXIS 494, at *45-46. Conversely, if we do not find confusion likely as to these marks based on the ’528 Registration, we would not find confusion likely based on Opposer’s other pleaded marks. Id. Moreover, in view of the presumptions afforded Opposer by the ’528 Registration under Trademark Act Section 7(b), 15 U.S.C. § 1057(b), we can decide the claim without reaching the more fact-intensive considerations involved with determining Opposer’s common law rights in the same mark. B. The Goods, Trade Channels, Classes of Consumers and Conditions of Sale Under the second and third DuPont factors, we consider the “similarity or dissimilarity and nature of the goods [ ] as described in an application or registration” and the “similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. We also consider the classes of consumers. We base our consideration of the nature of the goods, channels of trade and classes of consumers as identified in each application and the ’528 Registration. Octocom Sys., Inc. v. Hous.
Opposition Nos. 91285926 and 91285927 - 24 - Comput. Servs., Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed.”). The goods identified in the ’528 Registration are “detergent soap; detergents for dishwashing machines; dishwasher detergents; multi-surface cleaner.” The goods identified in the application for BLUE EARTH are “laundry detergents” and the goods identified in the application for CLEAR EARTH are “fabric softeners; laundry detergents.” “If an application or registration describes goods or services broadly, and there is no limitation as to their nature, it is presumed that the ‘registration encompasses all goods or services of the type described.’” Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *20-21 (quoting Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013)). Giving the identification of the ’528 Registration its full sweep, as we must, we find that Registrant’s broadly-claimed “detergent soap” encompasses the narrower “laundry detergents” identified in both of Applicant’s applications. Paula Payne Prods. Co. v. Johnson Publ’g Co., 473 F.2d 901, 902 (CCPA 1978) (“[W]e give full sweep to appellant’s registration description of goods[.]”). See In re Hughes Furniture Indus., Inc., No. 85627379, 2015 TTAB LEXIS 65, at *10 (“Applicant’s broadly worded identification of ‘furniture’ necessarily
Opposition Nos. 91285926 and 91285927 - 25 - encompasses Registrant’s narrowly identified ‘residential and commercial furniture.’”). The goods are thus in-part legally identical. Neither the identification in the ’528 Registration nor the identifications in the involved applications contain any limitations and to the extent the goods are legally identical, we must presume that they flow through the same trade channels to the same classes of consumers. See In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (“[I]t is well established that, absent restrictions in the application and registration, [identical] goods and services are presumed to travel in the same channels of trade to the same class of purchasers.”) (citation and internal quotation marks omitted), cited in Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018). Applicant concedes as much, stating: Here, because neither Applicant’s applications nor Opposer’s registrations contain any restrictions or limitations as to channels of distribution, price, style, or any other feature, Applicant does not dispute that the trade channels overlap. Likewise, both Applicant’s applications and Opposer’s registrations are directed towards goods that are identical or related. Finally, Applicant acknowledges that the Board may presume that the goods are directed at the same types of consumers. Bd. of Regents v. S. Ill. Miners, LLC, 110 USPQ2d 1182, 1192 (TTAB 2014).41 The factors of similarity of the goods, channels of trade and classes of consumers weigh strongly in favor of likelihood of confusion. 41 35 TTABVUE 11-12.
Opposition Nos. 91285926 and 91285927 - 26 - C. Strength or Weakness of Opposer’s Mark Next, we assess the strength of Opposer’s TRU EARTH mark because strength affects the scope of protection to which the mark is entitled. “Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). The fifth DuPont factor enables Opposer to prove that its pleaded mark is entitled to an expanded scope of protection by adducing evidence of commercial strength or “fame of the prior mark (sales, advertising, length of use),” whereas the sixth DuPont factor allows Applicant to contract that scope of protection by adducing evidence of “[t]he number and nature of similar marks in use on similar goods.” Made in Nature, 2022 TTAB LEXIS 228, at *23-24 (quoting DuPont, 476 F.2d at 1361). “[T]he strength of a mark is not a binary factor” and “varies along a spectrum from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed. Cir. 2015) (quoting In re Coors Brewing Co., 343 F.3d 1340, 1345 (Fed. Cir. 2003)). The parties agree that Opposer’s TRU EARTH mark is inherently distinctive because it is registered on the Principal Register without a disclaimer or claim of acquired distinctiveness.42 See Trademark Act Section 7(b), 15 U.S.C. § 1057(b); Tea Bd. of India v. Republic of Tea, Inc., No. 91118587, 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 registration, that the mark is inherently 42 See 34 TTABVUE 25; 35 TTABVUE 14.
Opposition Nos. 91285926 and 91285927 - 27 - distinctive for the goods.”). Opposer also appears to argue that its mark is commercially strong, which Applicant denies.43 Moreover, Applicant argues that “[w]hile Opposer’s mark may be inherently strong inasmuch as it is inherently distinctive as evidenced by its registration on the Principal Register without disclaimer, the commercial strength is not only inherently weak, but the scope of protection has been reduced by third party use of the term EARTH in the laundry products industry.”44 1. Asserted Commercial Strength of Opposer’s TRU EARTH Mark In considering commercial strength, we assess the extent to which the relevant public recognizes a mark as denoting a single source. See, e.g., Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-1325 (Fed. Cir. 2017). Commercial strength, or fame, “may be measured indirectly, among other things, by the volume of sales and advertising expenditures of the goods traveling under the mark, and by the length of time those indicia of commercial awareness have been evident.” Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 1319 (Fed. Cir. 2018) (quoting Bose, 293 F.3d at 1371)). “Fame of an opposer’s mark, if it exists, plays a ‘dominant role in the process of balancing the DuPont factors.’” 43 It is unclear whether Opposer is even asserting commercial strength. Opposer does not directly invoke the fifth DuPont factor. See 34 TTABVUE 25-26 (arguing that its mark is inherently strong). Opposer states generally in the introduction to its argument that it is a “leading household cleaning product company” that “has revolutionized laundry care with its innovative concentrated laundry strips,” 34 TTABVUE 13-14. Applicant treats this as arguing commercial strength, 35 TTABVUE 23, hence we will do the same. 44 35 TTABVUE 14 (internal quotation marks omitted).
Opposition Nos. 91285926 and 91285927 - 28 - Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1374 (quoting Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1327 (Fed. Cir. 2000)). “Because of the extreme deference that we accord a famous mark in terms of the wide latitude of legal protection it receives, and the dominant role fame plays in the likelihood of confusion analysis, it is the duty of the party asserting that its mark is famous to clearly prove it.” Made in Nature, 2022 TTAB LEXIS 228, at *35-36 (citing Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1367 (Fed. Cir. 2012)). To the extent Opposer argues that its mark is commercially strong or famous for likelihood of confusion purposes, we agree with Applicant that Opposer’s evidence is insufficient to show commercial strength. Opposer’s witness Brad Liski provided the following testimony and other evidence bearing on commercial strength: • TRU EARTH-branded laundry strips and related goods have been sold in the United States since at least as early as May, 2019.45 • Confidential annual revenue from the sale of goods bearing the TRU EARTH mark in the U.S. across product categories.46 • Confidential annual unit sales for all laundry products marked with the TRU EARTH mark in the U.S. from 2019 to 2024 and projected figures for 2025.47 • Evidence about Opposer’s marketing and promotion of “an earth-friendly and environmentally-conscious lifestyle through its online presence,”48 including printouts of Opposer’s website tru.earth and representative samples of its social media content posted on Instagram (identifying 45 22 TTABVUE 5-6, 8-41 (Liski Decl. ¶¶ 4-6 and Exs. A-B) (20 TTABVUE (confidential)) (attaching copies of invoices to consumers in the U.S. and product list). 46 20 TTABVUE 7 (confidential Liski Decl. ¶ 7). 47 20 TTABVUE 7 (confidential Liski Decl. ¶ 8). 48 22 TTABVUE 6-7 (Liski Decl. ¶ 9) (“Through curated content, tips, campaigns, and collaborations with eco-conscious partners, TEEPI inspires its audience to adopt mindful habits that contribute to the health and preservation of the planet.”).
Opposition Nos. 91285926 and 91285927 - 29 - 101,000 followers) and YouTube (showing videos including one identified as receiving over 127,000 views).49 • Evidence about Opposer’s influencer marketing, namely, a printout from the channel of YouTuber Michael Downie, identifying over 1 million subscribers, which “brings high viewership to TRU EARTH-branded products advertised in his videos.”50 The printout shows a video reflecting 1.5 million views. • Evidence about Opposer’s support for over 800 organizations across Canada and the U.S. “to create meaningful impact and reduce plastic waste on the planet.”51 Even accepting the numbers of followers and viewers indicated on the printouts attached to Mr. Liski’s declaration as reported by the Instagram and YouTube websites, we do not know how many of the followers are U.S. consumers. See, e.g., Performance Open Wheel Racing, Inc. v. United States Auto Club Inc., No. 91229632, 2019 TTAB LEXIS 137, at *29-30 (noting it was unclear how many Facebook “likes” were from people in the United States as opposed to outside the United States). And Opposer provides no context from which we can gauge the significance of these numbers, or of Opposer’s sales and revenue figures, in the detergent industry. See, e.g., Bose, 293 F.3d at 1375 (because raw numbers may be misleading, “some context 49 22 TTABVUE 6-7, 44-58 (Liski Decl. ¶¶ 9-10 and Exs. D and E). Portions of the printout of Opposer’s YouTube channel are cut off or illegible. See id. at 49-50. See Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., No. 92050879, 2013 TTAB LEXIS 347, at *25 n.16 (“onus is on the party making the submissions to ensure that, at a minimum, all materials are clearly readable by the adverse party and the Board”), aff’d mem. 565 F. App’x 900 (Fed. Cir. 2014). We consider the one video for which the text is legible titled “Why Dave Aspry is Switching to Tru Earth Laundry Strips?,” which indicates 127,828 views. See 22 TTABVUE 50. 50 22 TTABVUE 6-7, 51 (Liski Decl. ¶ 9 and Ex. D) (printout from DownieLive YouTube channel). 51 22 TTABVUE 7, 64-71 (Liski Decl. ¶ 11 and Ex. G) (article on Ocean Wise website about launch of “the Great American Shoreline Cleanup” and press release about Opposer’s 2024 Environmental, Social, and Governance report mentioning activities including donation of over 52 million laundry strips to non-profit organizations globally).
Opposition Nos. 91285926 and 91285927 - 30 - in which to place raw statistics is reasonable,” such as sales or advertising for comparable products or evidence of critical assessment or general reputation of the marked product). There are other shortcomings in Opposer’s evidence. The influencer video reflecting 1.5 million views did not feature Opposer’s laundry detergent products; instead, it shows the influencer holding up TRU EARTH-branded dishcloths and sponges.52 Opposer provided no evidence of advertising or marketing expenditures, and the sales information, while reflecting growth in the U.S. market, only shows unit sales for laundry products—the revenue figures are “across product categories,”53 which include other goods such as food wrap, produce bags and bamboo cutlery.54 We have no way of knowing how much of those revenues represent sales of the goods involved here. On the whole, we find that the evidence is insufficient to conclude that Opposer’s TRU EARTH mark is entitled to expanded protection as a commercially strong mark under the fifth DuPont factor. 2. Asserted Weakness of Opposer’s TRU EARTH Mark Turning to the sixth DuPont factor, “[e]vidence 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 52 See id. at 51. 53 20 TTABVUE 7 (confidential Liski Decl. ¶¶ 7-8). 54 See 22 TTABVUE 6, 41 (Liski Decl. ¶ 6 and Ex. B) (product list for goods available in the U.S. for 2023).
Opposition Nos. 91285926 and 91285927 - 31 - (quoting Palm Bay Imps., 396 F.3d at 1373). “When a field is crowded with similar marks, the theory is that customers will be more adept at distinguishing marks from each other and are less likely to be confused by similar marks.” Id. See also Juice Generation, 794 F.3d at 1338; Omaha Steaks, 908 F.3d at 1324 (cleaned up) (“The purpose of introducing evidence of third-party use is to show that customers have become so conditioned by a plethora of such similar marks that customers have been educated to distinguish between different [such] marks on the bases of minute distinctions.”). Such evidence tends to indicate a lack of commercial strength, while third-party registration evidence without proof of use may bear on conceptual weakness if a term is commonly registered for similar goods. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015); Juice Generation, 794 F.3d at 1339-40. Even without evidence of use, “[t]hird party registrations are relevant to prove that some segment of the composite marks which both contesting parties use has a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, 794 F.3d at 1339 (quoting J. Thomas McCarthy, 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION (McCarthy) § 11:90 (4th ed. 2015)). “The weaker an opposer’s mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Juice Generation, 794 F.3d at 1338-39 (internal citations omitted).
Opposition Nos. 91285926 and 91285927 - 32 - Applicant contends that the word EARTH is widely used in the laundry products industry, with at least 54 prior pending applications and registrations existing when the earliest of Opposer’s applications was filed in August 2019, and new applications approved and registrations issued thereafter.55 Against that backdrop, Applicant contends that, like many others before and after, it sought to develop a mark imbued “with an environmentally friendly connotation by incorporating the term EARTH within the mark.”56 In support of its argument that Opposer’s mark is weak, Applicant made of record evidence of both third-party registrations and third-party use, which we discuss in turn. a. Third-Party Registration Evidence Applicant made of record the following third-party, use-based registrations, owned by different parties, all for goods in Class 3: Mark Reg. No. / Reg. Date Relevant Goods 1. GREEN EARTH57 4189029 / Aug. 14, 2012 detergent soaps; laundry detergents 2. CLEAN EARTH58 3392612 / Mar. 4, 2008 soaps and detergents 3. NAKED EARTH59 4275453 / Jan. 15, 2013 detergent soap; laundry soap 4. ADVANTAGE: EARTH & design60 3098702 / May 30, 2006 laundry detergents 55 35 TTABVUE 9. 56 Id. 57 26 TTABVUE 16. 58 Id. at 37. 59 Id. at 59. 60 Id. at 85.
Opposition Nos. 91285926 and 91285927 - 33 - 5. GUESTS ON EARTH61 7045736 / May 9, 2023 detergent soap; laundry detergent 6. EARTHS LAUNDRY62 6883354 / Oct. 25, 2022 detergent soap; laundry detergents; laundry sheets impregnated with detergent 7. EARTHWASH63 6909779 / Nov. 29, 2022 laundry detergent sheets 8. EARTH ESSENTIALS64 3898151 / Dec. 28, 2010 6908563 / Nov. 22, 2022 laundry detergent 9. EARTH ASSURE65 3614486 / May 5, 2009 laundry detergents 10. SUN & EARTH (in standard characters and with design)66 6494796 / Sep. 21, 2021 6494794 / Sep. 21, 2021 laundry soap; detergent soap 11. EARTH BREEZE (in standard characters and various stylized forms)67 6149473 / Sep. 8, 2020 7447622 7613553, 7613554 / various dates in 2024 laundry sheets impregnated with detergent; laundry detergent; liquid laundry detergents; powder laundry detergents 12. ELEMENTAL EARTH68 6885229 / Oct. 25, 2022 cleaning preparations for laundry and bathrooms 13. EARTH STRONG69 5150222 / Feb. 28, 2017 laundry detergent; laundry soap; soaps and detergents 14. BACK TO EARTH70 5304114 / Oct. 10, 2017 laundry soap 61 Id. at 91. 62 Id. at 97. 63 Id. at 106. 64 Id. at 116, 124. 65 Id. at 138. 66 Id. at 144, 149. 67 Id. at 154, 162, 172, 183. 68 Id. at 200. 69 Id. at 221. 70 Id. at 232.
Opposition Nos. 91285926 and 91285927 - 34 - 15. EARTH CHOICE71 3260201 / July 10, 2007 all purpose cleaning preparations; general purpose cleaner with disinfecting properties; laundry pre- wash preparations 16. EARTHOIL (stylized)72 3939471 / Apr. 5, 2011 laundry detergents 17. EARTH CPR73 4656443 / Dec. 16, 2014 cleaning and conditioning preparations for household purposes; soaps in liquid form 18. EARTH FRIENDLY PRODUCTS (in standard characters and with design)74 (Section 2(f)) 5174609 / Apr. 4, 2017 5097369 / Dec. 6, 2016 environmentally conscious products, namely, laundry detergent; laundry detergent 19. MAMA EARTH75 7394708 / May 28, 2024 laundry detergent; laundry sheets impregnated with detergent; liquid laundry detergents; powder laundry detergents 20. SPLASH EARTH76 7527133 / Oct. 8, 2024 laundry sheets impregnated with detergent 21. OHM EARTH77 7362576 / Apr. 23, 2024 laundry sheets impregnated with detergent 22. PLANET EARTH SUDS78 7448835 / July 16, 2024 laundry sheets impregnated with detergent 23. ASTER EARTH79 7659062 / Jan. 21, 2025 laundry soap 24. EARTHCARE LABS & design80 5223960 / June 13, 2017 laundry detergent; laundry soap 71 Id. at 241. 72 Id. at 249. 73 Id. at 263. 74 Id. at 288-89, 306. 75 Id. at 318. 76 Id. at 327. 77 Id. at 340. 78 Id. at 353. 79 Id. at 365. 80 Id. at 376.
Opposition Nos. 91285926 and 91285927 - 35 - b. Third-Party Use Evidence Applicant submitted website screenshots showing the following marks used with detergent goods offered for sale: Website screenshots • EARTHS LAUNDRY. (laundry detergent sheets)81 • EARTH BREEZE (laundry detergent sheets)82 • SPLASH EARTH (laundry detergent strips and sheets)83 • EARTH RESCUE (laundry detergent sheets)84 • MOTHER’S EARTH (laundry detergent sheets)85 Applicant’s submissions also included five applications, see id. at 20-31 (EARTH GREENZ), 44-51 (COZY EARTH), 194-98 (EARTH BREEZE & design), 272-80 (EARTH OXI) and 381- 95 (EARTH RESCUE), and a chart listing a number of cancelled registrations. See 35 TTABVUE 29-34. These submissions are of little probative value and we do not consider them in our analysis. See Made in Nature, 2022 TTAB LEXIS 251, at *31 (“Third-party applications are evidence only of the fact that they have been filed … and have no other probative value,” whereas a cancelled or expired registration has no probative value other than to show that it once issued). We deny Applicant’s request to take judicial notice of the cancelled registrations in Applicant’s list as background information, see 35 TTABVUE 9 n.2, for the additional reason that the Board does not take judicial notice of registrations. See, e.g., In re Thomas Nelson, Inc., No. 76681269, 2011 TTAB LEXIS 9, at *20 n.18 (“[T]he Board’s well-established practice is not to take judicial notice of third-party registrations ….”). Applicant also made of record two of Opposer’s own registrations, which by definition are not “third-party registrations.” Finally, Applicant provided two registrations based on foreign registrations under Trademark Act Section 44(e), 15 U.S.C. § 1126(e), for which no evidence of use has been filed. See 26 TTABVUE 60-77. Such registrations also lack probative value and we have not considered them. See Made in Nature, 2022 TTAB LEXIS 228, at *30. 81 30 TTABVUE at 7-19. 82 Id. at 21-31. 83 Id. at 39-46, 49-56. 84 Id. at 70-85. 85 Id. at 88-99. The page is presented in English, but the website indicates that the company is based in the Netherlands. “Information originating on foreign websites or in foreign news publications that are accessible to the United States public may be relevant to discern United
Opposition Nos. 91285926 and 91285927 - 36 - • EARTHWASH (laundry detergent sheets)86 and • GUESTS ON EARTH (laundry detergent).87 Internet search results Applicant also submitted results from three searches for the words “earth” and “laundry,” on LexisNexis, Amazon.com, and Google, for which the results are truncated to varying degrees.88 The probative value of search engine results depends on the extent of the contextual information provided. Compare In re Bayer AG, 488 F.3d 960, 967 (Fed. Cir. 2007) (“Search engine results—which provide little context to discern how a term is actually used on the webpage that can be accessed through the search result link—may be insufficient to determine the nature of the use of a term or the relevance of the search results to registration considerations.”), with In re Wal-Mart Stores, Inc., No. 86261962, 2019 TTAB LEXIS 1, at *29 n.38 (“Web-based information that includes greater context for the use of a term, such as a complete webpage, will have greater probative value in determining how a term will be perceived.”); see also August Storck KG v. Florend Indústria e Comércio de Chocolates LTDA, No. 91277224, 2025 TTAB LEXIS 502, at *38-40 n.6 (“Although truncated, we find the uncontroverted Google(R) images search results that Applicant introduced more probative than a typical search summary because they (i) include product States consumer impression of a proposed mark.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 969 (Fed. Cir. 2007). Given that it is unclear whether the goods are offered in the United States, we do not consider this website in our analysis. 86 Id. at 101-04. 87 Id. at 107-11. 88 Id. at 4-5, 117-276, Exs. 72-74 to Applicant’s Fifth Notice of Reliance.
Opposition Nos. 91285926 and 91285927 - 37 - images from which we can ascertain the nature of the uses, (ii) identify the names of retailers, and (iii) in some instances suggest the chocolate is for sale (e.g., ‘in stock’).”). LexisNexis search results Applicant submitted a printout showing truncated results of a LexisNexis search for “*earth* w/3 laundry” which contains excerpts of articles from various publications.89 The list contains 375 entries, but many appear to be duplicates. We do not find the excerpts of news articles particularly probative of third-party use in and of themselves because they are incomplete and show limited context. Thus, we do not consider the search results or excerpts of articles as stand-alone evidence of third- party use of marks, but the article excerpts that reference third-party marks for which Applicant submitted registrations or website screenshots provide further support for a finding that consumers are exposed to those marks. These include articles about EARTH BREEZE, EARTHS LAUNDRY, EARTHWASH and SUN & EARTH.90 Amazon.com search results Applicant also submitted a printout showing results of a search on Amazon.com for the United States for “earth laundry” dated August 21, 2025.91 The printout shows listings of products offered for sale on Amazon.com, including a number of “Sponsored” listings. For each listing, an image of the product is shown, along with a 89 Id. at 117-254. 90 See, e.g., id. at 118-23, 125-26, 133, 137-40, 145, 154, 157, 228. 91 Id. at 256-67.
Opposition Nos. 91285926 and 91285927 - 38 - product description, pricing, delivery information, consumer review information and the purported number bought in the past month. Many of the listings include an “Add to cart” button, but some listings just have a “See options” button. We find that the Amazon.com search results are probative of third-party use because they contain sufficient context to show on their face that the products are being offered for sale. The results include laundry detergent products, including laundry detergent sheets, offered under the following third-party marks (as well as Opposer’s mark): • SPLASHEARTH92 • EARTHGREENZ93 • EARTH BREEZE94 • EARTHWASH95 • EARTH RESCUE96 • EARTH FRIENDLY PRODUCTS97 • EARTH OXI98 and 92 Id. at 256-57, 259. 93 Id. at 256, 259. Although Opposer’s objections state that Registration No. 98199625 for EARTH GREENZ is dead, 36 TTABVUE 12, the August 2025 Amazon.com search results made of record by Applicant on their face show laundry detergent sheets being offered under the EARTH GREENZ mark. See 30 TTABVUE 256, 259. Trademark rights arise from use not registration. See, e.g., Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1473 (Fed. Cir. 1987). 94 Id. at 256. 95 Id. at 257, 259, 264. 96 Id. at 258. 97 Id. at 261, 263. 98 Id. at 263.
Opposition Nos. 91285926 and 91285927 - 39 - • EARTHLEY.99 Google search results In addition, Applicant submitted a printout of a Google search of “+earth +laundry” dated August 22, 2025.100 The results include websites of third parties and retailers that offer laundry products, including under marks already mentioned, namely, EARTH BREEZE, GUESTS ON EARTH, EARTHS LAUNDRY, SPLASH EARTH, EARTH RESCUE, and EARTH WASH, as well as Opposer’s TRU EARTH mark. Although some of the results are significantly truncated and many of the images are blurred, the results clearly show laundry detergent products offered under those marks, and to this extent, the Google search results provide further support for a finding that consumers are exposed to those marks in use with laundry detergent products. In response to Applicant’s argument that the shared term EARTH is weak, Opposer argues that most of the third-party registrations are irrelevant or have limited probative value, for various reasons. First, Opposer argues that some of the registrations are dead or have been cancelled, are based on foreign registrations or are owned by Opposer.101 As noted above, we agree that such registrations have limited probative value and we do not consider them. Opposer also argues that twelve of the third-party registrations “were filed after Applicant’s filing date and did not 99 Id. at 264. 100 Id. at 269-76. 101 34 TTABVUE 24; 36 TTABVUE 8.
Opposition Nos. 91285926 and 91285927 - 40 - exist on the USPTO’s register and therefore could not have influenced Applicant’s perception or the state of register at the time Applicant filed its applications.”102 Opposer does not cite any authority for this proposition or provide persuasive reasoning for why registrations based on applications filed after Applicant’s filing date cannot show weakness of Opposer’s mark. The fact that such marks coexist tends to support Applicant’s argument of a crowded field. Cf. Plus Prods. v. Natural Organics, Inc., 1979 TTAB LEXIS 85, at *18-21 (evidence of third-party registrations for PLUS-formative marks for vitamins or similar goods that issued on dates before and after opposer’s mark supported inferences that opposer, USPTO, and the other mark owners, over a long interval of time, believed the marks could be used and registered without confusion provided there were minimal differences in the marks). Moreover, as in Plus Products, id. at *20, Opposer has not provided evidence that it has petitioned to cancel any of the third-party registrations of record.103 In addition, Opposer argues that many of the third-party registered marks, “while having either the wor[d] EARTH or TRU, are not relevant as they have other elements making them more dissimilar from the Opposer’s Marks than the Applicant’s Marks.”104 In its reply, Opposer extends this argument to state 102 34 TTABVUE 24. 103 Opposer provided rebuttal evidence describing its enforcement against other marks, namely, successful cease and desist notices to online sellers using the marks TRUE EARTH and TRU EARTH and a successful opposition against an application to register TENDER EARTH. 32 TTABVUE 5-8 (Rebuttal Testimony Declaration of Brad Liski). 104 34 TTABVUE 24. Opposer’s case citations and parentheticals immediately following this argument are directed to similarity of the goods, not the marks. See id. Such an argument is inapt here because all of the third-party registrations are for detergent soap, laundry detergent, and/or similar goods.
Opposition Nos. 91285926 and 91285927 - 41 - it is noted that as a general rule, to have much impact in demonstrating that any weakness in the cited registered marks inures to the benefit of the second comer (i.e., Applicant in this case), the third-party marks must be at least as similar to the cited registrations as the applicant’s mark. See, e.g., Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281, 1284-85 (Fed. Cir. 1984); Palisades Pageants, Inc. v. Miss Am. Pageant, 442 F.2d 1385, 169 USPQ 790, 793 (CCPA 1971). Here, the additional terms that modify “EARTH” in the cited third- party marks are further away from the registered marks than Applicant’s mark.105 We do not agree that the third-party registrations made of record can be cast aside on this basis. Evidence of composite third-party registrations is also relevant because ... [s]uch registrations could ... show that the [US]PTO, by registering several marks with such a common segment, recognizes that portions of such composite marks other than the common segment are sufficient to distinguish the marks as a whole and to make confusion unlikely. That is, the presence of such a descriptive or suggestive weak segment in conflicting composite marks is not per se sufficient to make confusion likely. Spireon, 71 F.4th at 1364 (citing 2 McCarthy § 11:90 (5th ed. 2023)). The cases cited by Opposer are distinguishable. For example, Specialty Brands, Inc. v. Coffee Bean Distribs., 748 F.2d 669, 675 (Fed. Cir. 1984), involved the mark SPICE ISLANDS, which was shown to be famous for likelihood of confusion purposes. The applicant in that case, seeking to register SPICE VALLEY for overlapping goods, introduced evidence of eight third-party registrations for marks containing the word SPICE, five of which were shown to be in use. Id. None of those marks had a “SPICE 105 36 TTABVUE 7.
Opposition Nos. 91285926 and 91285927 - 42 - (place)” format and the registered marks were “of significantly greater difference from SPICE VALLEY and SPICE ISLANDS than either of these two marks [were] from each other.” Id. Here, Applicant has provided evidence of approximately two dozen third-party registrations of marks for detergent soap, laundry detergent or similar goods that contain the word EARTH, at least seven of which were shown to be in use. Applicant provided evidence of additional marks in use, including EARTH GREENZ, EARTH RESCUE and EARTH OXI. And several of the third-party registrations here are for marks with a “word + EARTH” format like Opposer’s TRU EARTH mark, namely, GREEN EARTH, CLEAN EARTH, NAKED EARTH, SPLASH EARTH, OHM EARTH and ASTER EARTH. The third-party registration evidence submitted by Applicant is extensive, and shows that the word EARTH, when included in marks for detergent soap, laundry detergent and similar goods, is desirable to convey an earth-friendly or environmentally-conscious message, like the marks of both Applicant106 and Opposer.107 This supports a finding that when used with such goods EARTH “has a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, 794 F.3d at 1339 (citation omitted). 106 25 TTABVUE 3, Le Decl. ¶ 4 (testifying that Applicant “wanted to select a trademark that conveyed an earth-friendly connotation”). 107 34 TTABVUE 25 (Opposer’s brief stating that TRU EARTH “communicates the idea of products that are ‘true to the Earth,’ ‘genuinely natural,’ or ‘authentically environmentally responsible,’ while simultaneously functioning as a unique identifier of the Opposer’s commercial origin.”); 22 TTABVUE 45 (Opposer’s Instagram page states “Saving the planet one load of laundry at a time.”).
Opposition Nos. 91285926 and 91285927 - 43 - Opposer contends that “TRU EARTH is an arbitrary term with a slight suggestive leaning with respect to Opposer’s Goods,” and that arbitrary marks warrant a greater scope of protection than descriptive or weak marks, such that this factor favors Opposer.108 We disagree. “[A]n arbitrary mark is a known word used in an unexpected or uncommon way.” Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 1340 (Fed. Cir. 2004). Moreover, even apart from the evidence of third-party registrations, Applicant’s third-party use evidence (which was not addressed by Opposer) supports a finding that EARTH is commonly used for detergent goods to convey an earth-friendly or environmentally-conscious connotation. Applicant provided evidence of approximately ten parties offering laundry detergent goods for sale under EARTH- formative marks as seen in website and other internet evidence. Several of the third- party websites describe the detergent products sold under the EARTH-formative marks as “eco-friendly,”109 “planet friendly”110 and containing “no harsh chemicals.”111 The article excerpts introduced by Applicant also refer to “earth- friendly” or “eco-friendly” laundry brands with EARTH in their names.112 108 34 TTABVUE 25-26. 109 30 TTABVUE 8-18 (EARTHS LAUNDRY); 39-40 (SPLASH EARTH, website discusses how using “eco-friendly laundry detergent strips can make a positive impact on the environment”); see also id. at 71-80, 75 (EARTH RESCUE, “Laundry Detergent That’s Tough on Dirt & Gentle on the Earth”). 110 Id. at 101 (EARTHWASH). 111 Id. at 21 (EARTH BREEZE). 112 See, e.g., 30 TTABVUE 118 (articles discussing “Earth Breeze, a producer of environmentally friendly laundry detergent sheets”); 119 (press release stating that “Eco- conscious company Earths Laundry launches Eco-Friendly, Safe and Effective Laundry
Opposition Nos. 91285926 and 91285927 - 44 - We find that the extensive evidence of third-party registration and use detailed above shows that the word “EARTH” carries a known suggestive or descriptive connotation for laundry detergent and similar goods. We further find the evidence of third-party use, which includes websites showing the goods offered for sale under the marks as well as press coverage and online promotion of several of the third-party brands, sufficient to support a finding that consumers have become accustomed to distinguishing between multiple such marks based on slight differences. Thus, the term EARTH is entitled to a lesser degree of protection when used in connection with laundry detergent. See Jack Wolfskin, 797 F.3d at 1373-74 (extensive evidence of third-party registration and use of marks featuring paw print designs showed that this element was relatively weak and consumers were conditioned to look for differences in the design and additional indicia of origin to determine the source of the goods) (citing Juice Generation, 794 F.3d at 1339). Based on the foregoing, the sixth DuPont factor weighs strongly against likelihood of confusion. D. Similarity or Dissimilarity of the Marks We turn now to the first DuPont factor, which considers “[t]he similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” DuPont, 476 F.2d at 1361. “The proper test is not a side- by-side comparison of the marks, but instead whether the marks are sufficiently Detergent Sheets to reduce plastic consumption.”); 123 (article stating that Earthwash offers laundry detergent in sheets for “eco-friendly reduced plastic packaging”).
Opposition Nos. 91285926 and 91285927 - 45 - similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai, 901 F.3d at 1373 (quoting Coach Servs., 668 F.3d at 1368, internal quotation marks omitted). “On the other hand, 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 Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (quoted in Coach Servs., 668 F.3d at 1368). We focus “on the recollection of the average customer, who retains a general rather than specific impression of the marks.” Inter IKEA Sys. B.V. v. Akea, LLC, No. 91196527, 2014 TTAB LEXIS 166, at *17-18 (citations omitted). Where, as here, “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 America, 970 F.2d 874, 877 (Fed. Cir. 1992) (citations omitted). We first compare Opposer’s mark TRU EARTH with Applicant’s mark BLUE EARTH. Both marks consist of two words, with the second word, EARTH, being identical. As discussed above, we find that EARTH is commonly registered and used and therefore is conceptually and commercially weak for detergent soap, laundry detergent and similar goods. As noted by Applicant, the marks have different first words, which is a matter of some importance because consumers often notice and remember the first word in a mark. See, e.g., Presto Prods., 1988 TTAB LEXIS 60, at
Opposition Nos. 91285926 and 91285927 - 46 - *8 (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”). Although starting with different consonants, TRU and BLUE are similar in the sound of their vowels, with each ending in a long “U” sound. But this is the only point of similarity. Visually, we do not find TRU and BLUE to be similar. Nor do we find them to be similar in connotation. Applicant offered testimony and dictionary definitions relating to the connotation of its mark, with its CEO testifying that in BLUE EARTH, “[t]he term BLUE refers to the color of our planet with the overall commercial impression being one that suggests the product will maintain a healthy planet (i.e., keep our Earth blue).”113 BLUE is a color that is often associated with the sky or water, as reflected in Applicant’s dictionary evidence,114 and we find that BLUE EARTH conveys an impression of a planet in which the sky and water are blue and unpolluted. TRU is a shortened version of the known word “true,” and as noted by Opposer, when combined with EARTH it “communicates the idea of products that are ‘true to the Earth,’ ‘genuinely natural,’ or ‘authentically environmentally responsible.’”115 We find that, when the words BLUE and TRU precede EARTH, each yields a distinct connotation and commercial impression. We next compare Opposer’s mark TRU EARTH with Applicant’s mark CLEAR EARTH. Again, both marks consist of two words, including the identical, but 113 25 TTABVUE 10 (Le Dec. ¶ 9). 114 27 TTABVUE 25 (dictionary definitions of “blue” include “the pure color of a clear sky”); (“the blue” definitions include “the sky” and “the sea”). 115 34 TTABVUE 25.
Opposition Nos. 91285926 and 91285927 - 47 - relatively weak, second word EARTH. Here the aural and visual differences are even greater, because CLEAR ends in a consonant and does not have a similar “U” sound. It also has an additional letter. As for connotation, Applicant’s CEO testified that in CLEAR EARTH “[t]he term CLEAR refers to the absence of color, transparency and pureness with the overall commercial impression being one that suggests the product will not harm the health of the planet (i.e., the clearness keeping our Earth from being harmed).”116 Although both CLEAR EARTH and TRU EARTH may be considered similar to the extent they each convey a sense of transparency or authenticity, here we find that the visual and phonetic distinctions render the marks dissimilar, particularly given the weakness of EARTH for the involved goods. Because the goods at issue are legally identical, the degree of similarity required to prove a likelihood of confusion is lessened. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992). Nonetheless, comparison of the marks’ sight, sound, meaning and overall commercial impressions shows that Opposer cannot meet even this lowered standard, particularly in view of the narrowed scope of protection accorded to the word EARTH in its pleaded TRU EARTH mark. When considered in their entireties, we do not find that Opposer’s mark TRU EARTH and Applicant’s marks BLUE EARTH and CLEAR EARTH are similar, and the first DuPont factor weighs strongly against a finding of likelihood of confusion with respect to both of Applicant’s marks. 116 25 TTABVUE 10 (Le Decl. ¶ 10). See also 27 TTABVUE 33-34 (dictionary.com definition of “clear”).
Opposition Nos. 91285926 and 91285927 - 48 - E. Purchase Conditions and Consumer Sophistication Under the fourth DuPont factor, we consider the “conditions under which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361. Purchaser sophistication and care may minimize likelihood of confusion while impulse purchases of inexpensive items may tend to have the opposite effect. Palm Bay Imps., 396 F.3d at 1376. Opposer argues that its products are sold to the general public, which includes unsophisticated consumers who purchase goods without much investigation or evaluation, and that the goods are relatively low-priced and subject to impulse purchase, such that the fourth DuPont factor weighs in favor of likelihood of confusion.117 Applicant disagrees and argues that “the evidence suggests that environmentally conscious consumers would not act on impulse and would exercise at least ordinary care in discerning among various products and brands.”118 We must consider this factor based on the identifications in the applications (“laundry detergents”) and the ’528 Registration (“detergent soap”), neither of which limits the goods to those of any particular price or quality or consumers to those of any particular type, such as the environmentally-conscious. The evidence of laundry detergent products contained in the record shows that they are sold at relatively low 117 34 TTABVUE 19-20. 118 35 TTABVUE 22.
Opposition Nos. 91285926 and 91285927 - 49 - prices.119 The evidence also shows laundry detergent products offered in various fragrances, as well as “fragrance-free” and “baby” options,120 and many of the offerings of record claim to be hypoallergenic121 or free of harsh chemicals.122 Because the examples made of record are primarily brands that offer products described as environmentally-conscious, their consumers may be more discerning than the average consumer of laundry detergent. But as neither Applicant’s nor Opposer’s identification of goods is limited to environmentally-friendly goods, we must assume that they include products appealing to all potential consumers. August Storck KG, 2025 TTAB LEXIS 502, at *45. And we must base our analysis “on the least sophisticated potential purchasers.” Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014) (internal quotation marks omitted). Considering the evidence of products offered at relatively low prices, and the fact that the applications and the ’528 Registration identify ordinary, frequently replenished consumer goods without any limitations, we find that the consumers could include those that are unsophisticated or purchase the goods on impulse. Kimberly-Clark Corp. v. H. Douglas Enters. Ltd., 774 F.2d 1144, 1146 (Fed. Cir. 1985) (Purchasers of “relatively inexpensive and frequently replaceable” products “have long been held to 119 See, e.g., 21 TTABVUE 40 (Peters Decl. Ex. B) (showing Opposer’s goods offered at $13.95 for box of 32 sheets); 30 TTABVUE 263 (Amazon.com results showing laundry detergent sheets offered as low as $7.99 for 30 sheets). 120 See, e.g., 21 TTABVUE 40 (showing goods offered on Opposer’s website). 121 See, e.g., id. at 47 (Opposer’s website). 122 See, e.g., 30 TTABVUE 21, 41.
Opposition Nos. 91285926 and 91285927 - 50 - a lesser standard of purchasing care.”) (internal citation omitted). The fourth DuPont factor weighs slightly in favor of Opposer. F. Balancing the Factors and Conclusion on Likelihood of Confusion The final step in analyzing likelihood of confusion is to balance the DuPont factors for which there has been evidence and argument, explaining the results and “the weight [we] assigned to the relevant factors.” Charger Ventures, 64 F.4th at 1383-84. The goods are in-part legally identical, with the trade channels and classes of consumers presumed to overlap to this extent, and the second and third DuPont factors weigh strongly in favor of likelihood of confusion. The identified goods are frequently repurchased consumer products which are unlimited as to price or type of consumer, with the fourth DuPont factor weighing slightly in favor of likelihood of confusion. Opposer has not shown that its mark is entitled to an expanded scope of protection, so the fifth DuPont factor is neutral. Applicant, on the other hand, has shown that the word EARTH, which is the only element common to both Opposer’s TRU EARTH mark and Applicant’s BLUE EARTH and CLEAR EARTH marks, is conceptually and commercially weak for the involved goods, with the sixth DuPont factor weighing strongly against a likelihood of confusion. Considering the marks in their entireties, and against the backdrop of the extensive evidence of third-party registrations and use of EARTH-formative marks for identical and highly similar goods, we find that the marks overall are not similar. The first DuPont factor also weighs strongly against likelihood of confusion.
Opposition Nos. 91285926 and 91285927 - 51 - On balance, we find that the differences in the marks, coupled with the conceptual and commercial weakness of the EARTH portion of Opposer’s mark, outweigh the other factors based on the record in this case. See, e.g., Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, 826 F.3d 1376, 1381 (Fed. Cir. 2016) (concluding that based on the record before it “the Board did not err in balancing all relevant DuPont factors and in determining that the dissimilarity of the marks was sufficient to preclude a likelihood of confusion”). Cf. Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir. 1998) (“[O]ne DuPont factor may be dispositive in a likelihood of confusion analysis, especially when that single factor is the dissimilarity of the marks.”). Thus, we conclude that confusion is not likely between Opposer’s TRU EARTH mark and Applicant’s BLUE EARTH and CLEAR EARTH marks.123 Decision: The oppositions to registration of Applicant’s BLUE EARTH and CLEAR EARTH marks under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), are dismissed. 123 Opposer maintains that, if we have any doubt on the issue of likelihood of confusion, we should resolve that doubt in favor of Opposer, the senior user. 34 TTABVUE 26. The record in this case does not leave us with any doubt.
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