{"id":352,"date":"2018-08-27T09:11:11","date_gmt":"2018-08-27T13:11:11","guid":{"rendered":"https:\/\/trademarks.harnessip.com\/?p=352"},"modified":"2018-09-04T13:47:52","modified_gmt":"2018-09-04T17:47:52","slug":"352","status":"publish","type":"post","link":"https:\/\/trademarks.harnessip.com\/?p=352","title":{"rendered":"Don’t Try This at Home Boys and Girls — The TTAB is no Place for Amateurs"},"content":{"rendered":"

In\u00a0Zheng Cai v. Diamond Hong, Inc.<\/a>, [2018-1688](August 27, 2018), the Federal Circuit affirmed the cancellation\u00a0of the registration on\u00a0WU DANG TAI CHI GREEN TEA\u201d due to a likelihood confusion with Diamond Hong’s registered mark \u201cTAI CHI.\u201d<\/p>\n

The TTAB\u00a0found likelihood of confusion, giving limited consideration\u00a0to Mr. Cai\u2019s briefing because it \u201ccontraven[ed]\u201d certain\u00a0provisions of the Trademark Trial and Appeal Board
\nManual of Procedure (\u201cTBMP\u201d).\u00a0\u00a0Mr. Cai appealed the TTAB\u2019s evidentiary ruling excluding\u00a0evidence in his main brief, and its finding of likelihood\u00a0of confusion.<\/p>\n

The Federal Circuit reviews TTAB evidentiary rulings for abuse of discretion, and only reverses a TTAB ruling if it is (1) clearly unreasonable,\u00a0arbitrary, or fanciful; (2) based on an erroneous\u00a0conclusion of law; (3) premised on clearly erroneous\u00a0findings of fact; or (4) the record contains no evidence on\u00a0which the TTAB could rationally base its decision.<\/p>\n

The TTAB considered the arguments presented in Mr.\u00a0Cai\u2019s Main Brief but did not consider the factual assertions\u00a0and \u2018figures\u2019 displayed and discussed in Mr. Cai\u2019s
\nbrief, which “are not evidence introduced into the trial\u00a0record.\u201d\u00a0The TTAB\u00a0also did not consider Mr. Cai\u2019s reply brief because the\u00a0TMBP does not provide for such filings and gives the\u00a0TTAB broad discretion in considering them.<\/p>\n

Mr. Cai argued that the exclusive of his evidence was improper, but the Federal Circuit disagreed.\u00a0 The Federal Circuit noted that although the procedural guidelines in the TBMP do\u00a0not have the force of law, they are accorded a degree of\u00a0deference to the extent that it has the \u201cpower to persuade,\u201d\u00a0 The TBMP provides that evidentiary
\nmatters are resolved in accordance with the Federal\u00a0Rules of Evidence, the relevant portions of the Federal\u00a0Rules of Civil Procedure, the relevant provisions of Title
\n28 of the United States Code, and the rules of practice in\u00a0trademark cases.\u00a0 \u00a0Mr. Cai\u2019s Main Brief contained numerous assertions of fact, but this information is not\u00a0evidence under any of the relevant rules.\u00a0\u00a0With respect to his Reply Brief, the plain language of
\nthe TBMP states that the TTAB is not required to permit\u00a0a party in the position of defendant to file a reply brief.<\/p>\n

One the substantive issue of likelihood of confusion, the Federal Circuit reviewed the applicable factors of the 13-factor du Pont test, and concluded that substantial evidence supports the TTAB\u2019s findings\u00a0with respect to each DuPont factor, and the TTAB did not
\nerr as to its ultimate conclusion of likelihood of confusion.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In\u00a0Zheng Cai v. Diamond Hong, Inc., [2018-1688](August 27, 2018), the Federal Circuit affirmed the cancellation\u00a0of the registration on\u00a0WU DANG TAI CHI GREEN TEA\u201d due to a likelihood confusion with Diamond Hong’s registered mark \u201cTAI CHI.\u201d The TTAB\u00a0found likelihood of confusion, … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-352","post","type-post","status-publish","format-standard","hentry","category-likelihood-of-confusion"],"_links":{"self":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/352","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=352"}],"version-history":[{"count":5,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/352\/revisions"}],"predecessor-version":[{"id":360,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/352\/revisions\/360"}],"wp:attachment":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=352"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=352"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=352"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}