TTAB Affirms Refusal of THEE EARTH logo due to "Mismatch" Between the Identified Goods and Specimens of Use

The Board upheld a refusal to register the logo mark shown immediately below, for "compost," on the ground that the specimens do not show use of the mark on the single good identified in the application. Applicant Thee Earth described its two specimens of use as a photo of a toter bin and a picture of "food waste, food scraps, and solid food inside the bin which is considered compost." [The two specimens are shown further below]. Thus, there was "a mismatch between the identified good and the goods and/or services reflected by the specimens." In re Thee Earth & Composting Solutions, LLC, Serial No. 98020099 [not precedential] (Opinion by Judge Thomas L. Casagrande).

Thee Earth explained that its business consists of “compost collection services” and the “production and sale of finished compost." "Customers purchase a heavy-duty, two-wheeled plastic compost toter bin—available in 35-gallon, 65-gallon, and 96-gallon sizes—for purposes of storing their compostable organic waste prior to scheduled collection." The logo appears on each bin and on every bag of finished compost.

This explanation makes clear that Applicant does indeed sell compost, which is the only good identified in the application. And Applicant states that the compost is sold in bags with Applicant’s mark on them. That’s all good. But the problem is that none of the specimens Applicant submitted shows a labelled bag of compost as Applicant sells it.

The specimens show the mark only on a “toter bin” and Thee Earth made clear it does not sell compost in a toter bin, but in bags. "In layperson’s terms, there is a 'disconnect' or 'mismatch' between the single good listed in the application (compost) and the goods and services Applicant says that specimens represent."

The Board noted that, "at this late stage," nothing can be done to "fix" the issue. An application that has been considered and decided on appeal cannot be re-opened, except for entry of a disclaimer. The Board further noted that Thee Earth may file another application and provide a proper specimen.

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Text Copyright John L. Welch 2026.