Tru Earth Environmental Products Inc. v. Macroidea Inc.

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
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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
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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
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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
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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
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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
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’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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.