throbber
Hinck|eyAllenSnydertu»
`ATTORNEYS AT LAW
`28 State Street
`
`Amy B. Spagnole, Esq.
`aspagnole@haslaw.com
`Direct (61 7) 3 73-4204
`
`Boston, MA 02109-1775
`TEL: 517.345.9000
`FAX: 517.345.9020
`www.hasIaw.com
`
`IllllllIIIIHIIIIl||||IIHIIIIIIIIIIIIIHIIIIHIII
`
`01-03-2006
`’~ 5 ’“"*W°'°’*M M°“'*°=t°' 1*“
`
`December 30, 2005
`
`VIA FIRST CLASS MAIL
`
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Re:
`
`Notice of Opposition
`0fUnit(:d state, Trademmk
`
`Application No.: 78/527,481
`Applicant: ZoneChefs LLC
`Mark: ZONEKOSHER
`
`Class: 39
`
`Dear Madam:
`
`The following documents are submitted in connection with U.S. Application Serial No.
`78/527,481, filed by ZoneChefs LLC, for the mark ZONEKOSHER in International Class 39 on
`the Principal Register:
`
`1. Notice of Opposition With Exhibits 1-9;
`
`2. Opposition fee, $300.00, by check No. 68561 for 1 class;
`
`3. Certificate of Mailing dated December 30, 2005; and
`
`4. Authorization to charge Deposit Account.
`
`The Commissioner is authorized to charge any additional needed fees and to credit any
`overpayments to Account No. 50-0485, Hinckley Allen & Snyder LLP.
`
`Si c rely,
`
`7
`
`B. Spiagnole
`
`Enclosures
`
`cc:
`
`Deborah L. Benson (w/o Encl.)
`
`565039
`
`1500 Fleet Center, Providence, RI 02903-2393 TEL: 401.274.2000 FAX: 401.277.9600
`43 North Main Street, Concord, NH 03301-4934 TEL: 603.225.4334 FAX: 603.224.8350
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TTAB
`
`BARRY I,_ SEARS Ph_D_,
`
`Opposer,
`
`v.
`
`ZONECHEFS, LLC,
`
`Applicant.
`_
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`IlllllllllllllllllllllIIHIHIHIIHIIIHIIHIIll!
`
`01-03-2006
`' 5 pm" 3 W0’!/*V Ma1'Rcp:Dt #11
`
`Opposition No.
`
`Mark:
`Serial No.:
`Class:
`
`ZONEKOSHER
`78/527,481
`39
`
`NOTICE OF OPPOSITION
`
`Barry D. Sears, Ph.D., a United States citizen, with an address of 222 Rosewood Drive,
`
`Suite 500, Danvers, Massachusetts 01923 (hereafter “Opposer” or “Dr. Sears”) believes that he
`
`will be damaged by registration of the mark shown in Application Serial No. 78/527,481 for the
`
`mark ZONEK SHER for “food delivery services,” in International Class 39 on the Principal
`
`Register filed on December 6, 2004 by Zone Chefs, LLC, a New York limited liability company
`
`with an address of 8608 Foster Avenue, Brooklyn, New York 11236, and hereby opposes the
`
`same. As grounds for this opposition, Opposer alleges as follows:
`
`FACTS
`
`1.
`
`Opposer is the owner of the trademark ZONE and other marks incorporating
`
`ZONE for health and nutrition products and services.
`
`2.
`
`Since 1995, Opposer has used the trademark ZONE and composite marks, all
`
`incorporating ZONE as the dominant portion thereof, such as ZONE LABS, ZONENET, ZONE
`
`CAFE, ZONE CUISINE, ZONE SKIN CARE, ZONERX, and DR. SEARS ZONE, in
`
`01/05/2006 HPHAH1
`
`00000098 70527481
`
`01 FC:6402
`
`300.00 0!’
`
`545998
`
`

`
`connection with a wide variety of branded health and nutrition products and services, including
`
`print and electronic publications, educational and counseling services, meal delivery services,
`
`prepared foods, vitamins and supplements, meal replacements bars and drinks, skin care products
`
`and restaurant and cafe services. Such use has been ongoing and continuous.
`
`3.
`
`Opposer, Dr. Barry Sears, is the scientist and author who achieved considerable
`
`fame in connection with the lifelong hormonal and insulin control program that he first created
`
`about fifteen (15) years ago. E Declaration of Barry D. Sears (“Sears Decl.”) 1] 1, attached
`
`hereto at _Ij;xhib:i_t_l.
`
`4.
`
`Dr. Sears’ program uses food as a drug to help people control and balance their
`
`hormonal and insulin levels to achieve maximum mental productivity and as a means to
`
`improved health.
`
`lgl_. at 1] 2.
`
`5.
`
`Dr. Sears branded his writing, teaching and consulting on the benefits of an
`
`insulin balanced hormonal control diet with the term “ZONE.” l_d_. at 1[ 3.
`
`6.
`
`Dr. Sears adopted the term ZONE as his trademark to analogize the health
`
`benefits of his products and services compliant with his hormonal control program for ordinary
`
`dieters to that of the “flow” achieved by superior athletes during sports participation. Li. at 1[ 4.
`
`7.
`
`The terms “flow” or “zone” have been used to denote a heightened state of
`
`consciousness during sports participation during which an athlete performs to the best of his or
`
`her ability. An article discussing this concept is attached at Exhibit 2.
`
`8.
`
`The term ZONE in Dr. Sears’ ZONE Marks is not used in its ordinary sense to
`
`mean “an area” --- e.g., “play zone” describing a specific area dedicated to playing.
`
`9.
`
`Since creation of his hormonal control/insulin balanced program, Dr. Sears has
`
`provided a wide array of health and nutrition products and services that are compliant with this
`
`#545998
`
`2
`
`

`
`program under the trademark ZONE and composite trademarks all containing ZONE as the
`
`dominant portion thereof, including, but not limited to, ZONE, ZONE CUISINE, ZONE CAFE,
`
`ZONE SKIN CARE, ZONERX, ZONE LABS, ZONENET and ZONE SHAKES (the “ZONE
`
`Marks”). Li. at 1] 5.
`
`10.
`
`Dr. Sears is well known as the source of ZONE branded products and services.
`
`11.
`
`Dr. Sears has authored numerous ZONE branded books which are premised upon
`
`using food as a drug to control and balance hormonal and insulin levels, including The Zone,
`
`Mastering the Zone, Zone Food Blocks, The Anti-Aging Zone, A Week in the Zone, The Soy Zone,
`
`The Top One Hundred Zone Foods, The 0megaRx Zone and The Anti-Inflammatory Zone. Sears
`
`Decl. at 1] 6.
`
`12.
`
`Several of these books have appeared on The New York Times bestseller list. Q
`
`at 1] 7.
`
`13.
`
`Dr. Sears’ The Zone was number one on The New York Times bestseller list in
`
`1996 and remained on that list for approximately twenty (20) weeks. Q at 1] 8.
`
`14-.
`
`More than 1 million hard cover copies of Dr. Sears’ ZONE branded books have
`
`been sold in the United States alone. Li. at 119.
`
`15.
`
`Dr. Sears’ works have been translated into Q languages and are sold in at least @
`
`foreign countries.
`
`I_d, at 1[ 10.
`
`16.
`
`In addition to his ZONE branded books, Dr. Sears and his ZONE branded health
`
`and nutrition products and services are widely known from his numerous and frequent live and
`
`taped appearances, including seminars, conferences, radio shows, and network television
`
`interviews, throughout the country. Sears Decl. at 11 11.
`
`#545998
`
`3
`
`

`
`17.
`
`In promoting his ZONE branded health and nutrition products and services, Dr.
`
`Sears has appeared on nationally-broadcast television shows, including The Today Show in 1996
`
`and again in January 2005, 20/20 in 1999, Good Morning America on June 9, 2000, June 15,
`
`2000 and again in May 2002, Dateline in July 2002, CBS Evening News on May 21, 2003, The
`
`Montel Williams Show on April 1, 2004 and Live With Regis and Kelly on February 2, 2005.
`
`1gl_.
`
`at1| 12.
`
`18.
`
`Additionally, each year since 1998, Dr. Sears has conducted a week long ZONE
`
`branded seminar aboard a cruise ship, providing a series of presentations and demonstrations on
`
`mastering his hormonal and insulin control program. Q at 1] 13.
`
`19.
`
`Dr. Sears is well and favorably known throughout the United States and has built
`
`up valuable goodwill and reputation in his ZONE Marks. E, at 1] 14.
`
`20.
`
`The widespread recognition, fame and goodwill associated with ZONE for
`
`products and services in the health and nutrition marketplace is a result of the Opposer’s
`
`continuous marketing efforts, national media attention, the expenditure of considerable amounts
`
`of money for advertising and promotional activities and by virtue of the high quality of the
`
`Opposer’s ZONE branded products and services.
`
`21.
`
`Opposer is the owner of approximately seventy (70) plus trademarks and service
`
`marks comprising or containing “ZONE” for a wide array of health and nutrition products and
`
`services. gt, at 1;’ 15.
`
`22.
`
`By way of example, Opposer owns the following United States Trademark
`
`Registrations:
`
`Mark:
`
`ZONE
`
`Registration No.:
`Registration Date:
`App. Date:
`
`2,689,749
`February 25, 2003
`May 22, 2000
`
`#545998
`
`4
`
`

`
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`Mark:
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`May 1995
`
`May 1995
`Publications, namely a series of books in the field of diet
`and nutrition.
`
`ZONERX
`
`2,929,836
`
`March 1, 2005
`
`September 17, 2003
`April 23, 2002
`
`April 23, 2002
`Workbooks and printed guides about diet, health, and
`nutrition.
`
`Mark:
`
`ZONE CUISINE
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`2,997,305
`
`September 20, 2005
`March 1, 2004
`
`September 2003
`
`September 2003
`Prepared and packaged entrees consisting primarily of
`meat, fish, poultry, or vegetables.
`
`Mark:
`
`ZONE CUISINE
`
`Registration No.:
`App. Date:
`Registration Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`Mark:
`
`{egistration No.:
`{egistration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`2,968,210
`
`December 13, 2002
`
`July 12, 2005
`September 2003
`
`September 2003
`Catering services.
`
`ZONE SKIN CARE
`
`2,623,974
`September 24, 2002
`March 30, 2001
`June 2000
`
`In Commerce:
`
`June 2000
`
`Goods:
`
`Skin care products, namely soaps, lotions, creams, and oils
`for the face, body, and hair.
`
`#545998
`
`

`
`23.
`
`In accordance with Sections 7(b), 22 and 33(a) of the Lanham Trademark Act,
`
`Opposer’s above-cited registrations constitute primafacie evidence of the validity of the
`
`registered marks and of the registrations thereof, Opposer’s ownership of the marks shown in
`
`said registrations, and Opposer’s exclusive right to use the marks in commerce in connection
`
`with the goods and services named therein, without condition or limitation.
`
`24.
`
`Said registrations constitute notice to Applicant of Opposer’s claim of ownership
`
`of the marks shown within such registrations.
`
`25.
`
`Applicant had constructive notice of Opposer’s registration for ZONE (Reg. No.
`
`2,689,749) as of February 25, 2003, prior to the filing date of Application Serial No. 78/527,481
`
`for ZONEKOSHER on December 6, 2004.
`
`26.
`
`The Applicant seeks to register ZONEKOSHER as a trademark for “food delivery
`
`services,” in International Class 39.
`
`27.
`
`Applicant’s Application Serial No. 78/527,481 for ZONEKOSHER was filed on
`
`December 6, 2004 in the United States Patent and Trademark Office.
`
`28.
`
`Application Serial No. 78/527,481 was filed under Section l(b) of the Trademark
`
`Act claiming a bona fide intent to use the mark in commerce in connection with “food delivery
`
`services.”
`
`29.
`
`Since Application Serial No. 78/527,481 is based upon an alleged bona fide intent
`
`to use, the filing date is the only date upon which Applicant may rely for purposes of priority.
`
`30.
`
`Application Serial No. 78/527,481 was filed on December 6, 2004, long after
`
`Opposer coined and began using his ZONE Marks in 1995.
`
`31.
`
`Application Serial No. 78/527,481 was filed on December 6, 2004, long after
`
`Opposer’s date of first use of May 1995 for ZONE (Reg. No. 2,689,749).
`
`#545998
`
`5
`
`

`
`32.
`
`Application Serial No. 78/527,481 was filed on December 6, 2004, long after
`
`Opposer’s date of first use of June 2000 for ZONE SKIN CARE (Reg. No. 2,623,974).
`
`33.
`
`Application Serial No. 78/527,481 was filed on December 6, 2004, long after
`
`Opposer’s date of first use of April 23, 2002 for ZONERX (Reg. No. 2,929,836).
`
`34.
`
`Application Serial No. 78/527,481 was filed on December 6, 2004, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,968,210).
`
`35.
`
`Application Serial No. 78/527,481 was filed on December 6, 2004, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE Oleg. No. 2,997,305).
`
`36.
`
`The Applicant’s ZONEKOSHER mark and the Opposer’s ZONE Marks are
`
`virtually id.entical in sound and appearance and create the same commercial impression.
`
`37.
`
`The term ZONE comprises the dominant portion of Applicant’s ZONEKOSHER
`
`mark.
`
`38.
`
`The term ZONE comprises the dominant portion of Opposer’s ZONE Marks,
`
`including Opposer’s ZONE, ZONE SKIN CARE, ZONERX and ZONE CUISINE marks.
`
`39.
`
`The term ZONE in the Applicant’s mark ZONEKOSHER has the identical
`
`meaning as the term ZONE in Opposer’s registered marks and common law marks.
`
`40.
`
`The term ZONE in ZONEKOSHER refers to and indicates compliance with Dr.
`
`Sears and his criteria for an insulin and hormonal balanced diet. Print outs from Applicant’s
`
`website are attached at Exhibit 3.
`
`41.
`
`Applicant’s food delivery services are advertised as all about “honnonal
`
`responses to food,” “regulating your body’s insulin,” and thinking of “food as a drug.” Print outs
`
`from Applicant’s website are attached at Exhibit 4.
`
`#545998
`
`7
`
`

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`42.
`
`The Applicant’s services, as set forth in the Application Serial No. 78/527,481,
`
`and Opposer’s ZONE branded health and nutrition goods and services are highly related, if not
`
`identical.
`
`43.
`
`The services set forth in Application Serial No. 78/527,481 are “food delivery
`
`services.”
`
`44.
`
`The Opposer offers food delivery services in connection with its ZONE CUISINE
`
`mark.
`
`45.
`
`The services set forth in Opposer’s Registration No. 2,968,210 for ZONE
`
`CUISINE are “catering services.”
`
`46.
`
`Food delivery services and catering services are highly related, if not identical,
`
`services.
`
`47.
`
`The goods set forth in Opposer’s Reg. No. 2,689,749 for ZONE are “books in the
`
`field of diet and nutrition.”
`
`48.
`
`Applicant’s ZONEKOSHER meal delivery services are specifically concerned
`
`with diet and nutrition. Print outs from Applicant’s website are attached at Exhibit 5.
`
`49.
`
`Applicant’s Application Serial No. 78/527,481 does not limit the channels of
`
`trade through which its services will travel nor does it limit the consumers to whom such services
`
`are directed.
`
`50.
`
`Applicant’s services are presumed to travel through all channels of trade and to be
`
`directed towards all relevant consumers.
`
`51.
`
`There are no limits on the channels of trade or consumers for Opposer’s goods
`
`and services as described in Opposer’s Reg. Nos. 2,689,749, 2,623,974, 2,929,836, 2,997,305
`
`and 2,968,210.
`
`#545998
`
`8
`
`

`
`52.
`
`The Applicant’s ZONEKOSHER services and the Opposer’s ZONE branded
`
`goods and services will be sold or offered through the same channels of trade.
`
`53.
`
`The Applicant’s ZONEKOSHER services and the Opposer’s ZONE branded
`
`goods and services will be sold to the same customers.
`
`54.
`
`Consumers are likely to believe that Applicant’s services, similarly marked and
`
`sold in the same channels of trade as Opposer’s ZONE branded goods and services, come from
`
`or are sponsored or endorsed by the same source.
`
`55.
`
`Consumers are likely to expect that Applicant’s services, similarly marked and
`
`creating an identical commercial impression -- as a result of the use of the term ZONE in the
`
`context of food designed to assist dieters with hormonal control and insulin balance --, are of the
`
`same quality as Opposer’s ZONE branded goods and services.
`
`56.
`
`Upon information and belief, Applicant adopted and applied to register the mark
`
`ZONEKOSHER with actual knowledge of Opposer’s prior rights in and to the ZONE Marks for
`
`health and nutrition products and services and with a bad faith intent to trade off the good will of
`
`Opposer’s ZONE Marks.
`
`57.
`
`Upon information and belief, Applicant willfully copied Dr. Sears’ ZONE Marks
`
`in choosing ZONEKOSHER in a deliberate attempt to associate its services with Opposer,
`
`Opposer’s ZONE Marks and the good will therein.
`
`58.
`
`Applicant maintains websites at the Internet addresses <zonechefs.com> and
`
`<kosherzonechefs.com>.
`
`59.
`
`Applicant provides several dietary tips on its <kosherzonechefs.com> website.
`
`60.
`
`Applicant’s dietary tips are virtually identical to tips that Dr. Sears offers in his
`
`own ZONE branded publications.
`
`#545998
`
`9
`
`

`
`61.
`
`Applicant’s <kosherzonechefs.com> website suggests using the palm of your
`
`hand to detzermizne the correct amount of protein to consume at each meal. Print outs from
`
`Applicant’s <ko sherzonechefs.com> website are attached at Exhibit 6.
`
`62.
`
`Dr. Sears uses this same methodology in his ZONE branded publications.
`
`Excerpts from Dr. Sears Mastering the Zone book, published in 1997, long prior to the filing of
`
`application Serial No. 78/527,481 on December 6, 2004, describing this tip are attached at
`
`Exhibit 7.
`
`63.
`
`Applicant sells pharmaceutical grade fish oil supplements on its <zonechefs.com>
`
`website in connection with the mark Z-OMEGA-3. Print outs from Applicant’s
`
`<zonechefs.com> website are attached at Exhibit 8.
`
`64.
`
`Dr. Sears has promoted the health benefits of pharmaceutical grade fish oil for
`
`numerous years and recommends such supplement as an essential part of his insulin and
`
`hormonal control program. Sears Decl. at 1] 16.
`
`65.
`
`Dr. Sears sells his own ZONE branded pharmaceutical grade fish oil supplements.
`
`I; at 1] 17.
`
`66.
`
`Applicant touts one of its chefs as the “former executive pastry chef to Dr. Barry
`
`Sears (author of the ZONE DIET).” Print cuts from Applicant’s <zonechefs.com> website are
`
`attached at
`
`FIRST GROUND FOR RELIEF
`
`{UNDER 15 U.S.C. § 1052§dn
`
`67.
`
`Opposer incorporates by reference paragraphs 1 through 66 as if fully set forth
`
`herein.
`
`68.
`
`The ZONE Marks have been used continually by Opposer since a date prior to
`
`any date on which Applicant may rely.
`
`#545998
`
`10
`
`

`
`69.
`
`Applicant’s ZONEKOSHER mark is identical or confusingly similar to Opposer’s
`
`ZONE Marks in appearance and in commercial impression.
`
`70.
`
`The services of Applicant to be offered under its ZONEKOSHER mark are
`
`identical or related to Opposer’s goods and services provided under the ZONE Marks and to Dr.
`
`Sears himself.
`
`71.
`
`The use by Applicant of ZONEKOSHER for the services listed in the subject
`
`application is likely to create the erroneous impression that Applicant’s services originate with,
`
`are sponsored or promoted by, come from, or are otherwise associated with Opposer or
`
`Opposer’s goods and services provided under the ZONE Marks or that Applicant’s services are
`
`endorsed, sponsored, or in some way connected with Opposer.
`
`72.
`
`Use of ZONEKOSHER by Applicant is likely to cause confusion, cause mistake
`
`or to deceive the public into the belief that the services offered under ZONEKOSHER come
`
`from or are otherwise authorized or sponsored by Opposer in violation of Section 2(d) of the
`
`Lanham Act, 15 U.S.C. § 1052(d).
`
`#545998
`
`11
`
`

`
`WHEREFORE, the Opposer requests that this opposition be sustained and that
`
`Trademark: Application Serial No. 78/527,481 filed on December 6, 2004 by Zone Chefs, LLC
`
`be rejected and its registration refused.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PH.D.
`
`By his attorneys,
`
`’7
`
`17
`
`Deborah L. Benson
`
`Peter A. Herbert
`
`Amy B. Spagnole
`Hinckley, Allen & Snyder LLP
`28 State Street
`
`Boston, MA 02109
`
`Tel: (617) 345-9000
`Fax: (617)345-9020
`
`Dated: December 30, 2005
`
`CERTIFICATE OF MATLING
`IKQQHQ that this corrmzrondcnce is being I!
`Vltllhcvlited States Postm‘ Se: vizrc as first-class mail in II
`envelope addressed to tho 'Icm;nis:‘ hut for Trademlrfl
`mm: 1451, Alexand = E, vi. ,’_;i=‘.iL .231 -1451, on
`
`
`
`#545998
`
`12
`
`

`
`
`
`Exhibit 1Exhibit 1
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.
`
`Mark:
`Serial No.:
`Class:
`
`ZONEKOSHER
`78/527,481
`39
`
`)
`
`) )
`
`) )
`
`)
`)
`)
`)
`)
`)
`
`BARRY D. SEARS Ph.D.,
`
`Opposer,
`
`v.
`
`ZONECHEFS, LLC,
`
`Applicant.
`__
`
`DECLARATION OF BARRY D. SEARS PH.D.
`
`1, Barry D. Sears. Ph.D., on oath hereby depose and state as follows:
`
`1.
`
`I am a scientist and author who has achieved considerable fame in connection
`
`with the lifelong hormonal and insulin control program that I first created about fifteen (15)
`
`years ago.
`
`2.
`
`My program uses food as a drug to help people control and balance their
`
`hormonal and insulin levels to achieve maximum mental productivity and as a means to
`
`improved health.
`
`3.
`
`I branded my writing, teaching and consulting on the benefits of an insulin
`
`balanced hormonal control diet with the term “ZONE.”
`
`4.
`
`I adopted the term ZONE as my trademark to analogize the health benefits of my
`
`products and services compliant with my hormonal control program for ordinary dieters to that
`
`of the “flow” achieved by superior athletes during sports participation.
`
`#563917
`
`

`
`5.
`
`Since creation of my hormonal control/insulin balanced program, I have provided
`
`a wide array of health and nutrition products and services that are compliant with this program
`
`under the trademark ZONE and composite trademarks all containing ZONE as the dominant
`
`portion thereof, including, but not limited to, ZONE, ZONE CUISINE, ZONE CAFE, ZONE
`
`SKIN CARE, ZONERX, ZONE LABS, ZONENET and ZONE SHAKES.
`
`6.
`
`I have authored numerous ZONE branded books relating to using food as a drug
`
`to control and balance hormonal and insulin levels, including The Zone, Mastering the Zone,
`
`Zone Food Blocks, The Anti-Aging Zone, A Week in the Zone, The Soy Zone, The Top One
`
`Hundred Zone Foods, The 0megaRx Zone and The Anti-Inflammatory Zone.
`
`7.
`
`8.
`
`Several of these books have appeared on The New York Times bestseller list.
`
`The Zone was number one on The New York Times bestseller list in 1996 and
`
`remained on that list for approximately twenty (20) weeks.
`
`9.
`
`More than five million hard cover copies of my ZONE branded books have been
`
`sold in the United States alone.
`
`10.
`
`My works have been translated into twenty-two (22) languages and are sold in at
`
`least forty (40) foreign countries.
`
`11.
`
`In addition to my ZONE branded books, myself and my ZONE branded health
`
`and nutrition products and services are widely known from my numerous and frequent live and
`
`taped appearances, including seminars, conferences, radio shows, and network television
`
`interviews, throughout the country.
`
`12.
`
`In promoting my ZONE branded health and nutrition products and services, I
`
`have appeared on nationally-broadcast television shows, including The Today Show in 1996 and
`
`again in January 2005, 20/20 in 1999, Good Morning America on June 9 and June 15, 2000 and
`
`#563917
`
`2
`
`

`
`again in May 2002, Dateline in July 2002, CBS Evening News on May 21, 2003, The Montel
`
`Williams Show on April 1, 2004 and Live With Regis and Kelly on February 2, 2005.
`
`13.
`
`Additionally, each year since 1998, I have conducted a week long ZONE branded
`
`seminar aboard a cruise ship, providing a series of presentations and demonstrations on
`
`mastering the hormonal and insulin control program that I developed.
`
`14.
`
`I am well and favorably known through the United States and I have built up
`
`valuable goodwill and reputation in my ZONE Marks.
`
`15.
`
`I am the owner of approximately seventy (70) plus trademarks and service marks
`
`comprising or containing “ZONE” for a wide array of health and nutrition products and services.
`
`16.
`
`I have promoted the health benefits of pharmaceutical grade fish oil for numerous
`
`years and recommend such supplement as an essential part of my insulin and hormonal control
`
`program.
`
`17.
`
`I sell my own ZONE branded pharmaceutical grade fish oil supplements.
`
`The declarant further declares that all statements made herein of his knowledge are true,
`
`and that all statements made on information and belief are believed to be true; and further
`
`declares that these statements were made with the knowledge that willful false statements and the
`
`like so made are punishable by fine or imprisonment, or both, under Section 1001 of Title 18 of
`
`the United States Code and that such willful false statements may jeopardize the validity of this
`
`/ E
`-
`
`all
`
`Barry
`
`§
`
`2
`
`.Se sPh.D.
`
`declaration.
`
`December a 2005
`
`#563917
`
`3
`
`

`
`
`
`Exhibit 2Exhibit 2
`
`

`
`The Zone: An Empirical Study
`
`_-
`
`-
`
`Page 1 of 8
`
`
`
`,
`
`w
`
`Tina Gnlin.e s¥£3t:rnali:of Sgnort P57}~’£If?QiD'g}~*'
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`
`The Zone: Evidence of a Universal Phenomenon for Athletes
`Across Sports
`JanetA Young and Michelle D Pain
`-Monash University, Melbourne, Australia
`
`ABSTRACT
`
`Introduction
`
`Theoretical Frameworks
`
`Zone Sport Research
`
`Universality of the Sport Zone
`
`ual'ta ' ed
`
`211
`
`i
`
`Quantitative Analysis
`
`lll'IlIl1
`
`References‘
`
`ABSTRACT
`
`This paper examines the heightened states of consciousness during participation in sport termed the zone
`or flow. Theoretical frameworks and studies of the phenomenon are described. The notion of a universal
`zone in sport is explored with a review of Young's (1 999a) comparative analysis of flow experiences of
`professional tennis players with Jackson's (1993, 1996) elite athletes. Qualitative analyses of tennis
`players‘ and elite athletes’ narratives of flow support flow_theory's posited structure of flow consisting of
`eight dimensions. No significant differences were found between tennis players and elite athletes on the
`
`

`
`yses suggest that the zone or flow state is a
`although intra-sport. and inter-athlete differences are evident.
`Introduction
`
`"the zone" (e.g., Clarkson,
`te, the zone characterises a
`
`literature, the terms zone and flow are in fa
`Heathcote, 1996).
`
`ct used interchangeably
`
`and include the concepts of
`"flow". In the sport psychology
`and synonymously (Cooper, 1998;
`
`Zone Sport Research
`Studies of the zone or "zone-like states" include t
`hose ofRavizza (1977, 1984), Loehr (1986),
`Garfield and Bennett (1984), Jac
`kson (1992, 1993, 1995, 1996) and Young (1999a,- 1_999b, 1999c, V
`
`h’CtI3I//
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`.athleticin.eia'h+ r-nm/vn11r-.n
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`'
`
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`
`moments during sport participation as salient, highly valued and extremely meaningful.
`Loehr (1986) examined over 300 athletes’ "ideal performance state" by requesting athletes to
`describe their "finest hour" in sportparticipation. Twelve categories were identified to reflect the ideal
`internal climate forperforming optimally. These categories were: physically relaxed; mentally calm; low
`anxiety; energised; optimistic; enjoyment; effortless; automatic; alert; mentally focused; self-confident;
`Elite athletes in Garfield andBennett's (1984) study were asked to describe their feelings at "those
`moments when they were doing something extraordinarily well" (p.158). Eight mental and physical
`conditions, labelled "peakperformance feelings" were identified as being characteristic ofthese
`
`and, in control.
`
`hftpI//WTVW.athl6tlClnSlQl'1t.Cnm/Vnl1Tan’: n:......--.: . .-
`
`rv
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`

`
`female, with an equal number from Australia
`epresenting seven sports [four athletes per sport], which included track and field,
`ey). To provide the basis for such a
`
`newarding in an.d of itself",
`predicted that the tennis players and elite athletes, represen '
`
`a miscellaneous category. A summary of the resul
`Jackson, is presented in Table 1.
`
`Table 1.
`Theoretical Dimensions ofFlow and Miscellaneous Cate 0
`Percenta e* of Tennis Pla ers and Elite
`Athletes Citing Themes Within Each Dimension and Percenta e ofAll Raw Data Themes Re resented
`by Bach Dimension
`
`
`
`
`
`Flow Dimension
`
`
`
`I
`
`8. Autotelic experience
`I
`9. Miscellaneous
`
`
`
`I
`I 1. Challenge—skill balance
`
`2. Action-awareness merging]
`'3. Clear goadgmd feedback
`'4. Concentrat_ic£
`I5. Loss,self--c—oi1-sasiousness
`
`I6. Paradox of control
`17. Transformation of time
`
`
`
`
`
`
`
`hftDI//V‘{WW.afl1leHninc1'nl-1+ nm.../17..11r--4n‘*
`
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`
`'
`
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`
`

`
`The Zone: An Empirical Study
`
`I
`
`Page 5 of 8
`
`Young (1999a) concluded there was a close match ofthe structure offlow for both tennis players and
`elite athletes with flow theory's posited structure offlow. Notwithstanding this correspondence,
`’
`individual differences were evident as to the salience oftheoretical flow dimensions for both tennis
`
`Table 2.
`
`Mean Scores and t-values for Youn 's 1999a Tennis Pla ers and Jackson's 1993 Elite Athletes From
`
`Other Sports on Experience Questionnaire (Erivette, 1984) Items
`__;..__:._
`
`
`
`
`
`Item
`
`
`
`
`
`
`I
`Clear inner process
`I
`Felt all together
`l
`lAwarenes_s_o£power
`I
`(Clear focus
`I
`Strong sense ofself
`_________________
`
`'
`
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`
`

`
`The Zone: An Empirical Study
`
`Page.6 of 8
`
`
`
`I_l7r_ee from outer restrictions
`
`Need to complete
`
`S
`Ilntention
`
`"U53U} o:3E. 9
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`I_6_\7_g§_E§2s/lmed other senses, thoughts
`IProc6sfi:licked"
`IPersonal understanding, expression
`
`
`Actions, thoughts spontaneous
`
`Event was ‘practiced
`IPerfc-rrnance
`
`Fulfillment
` ._s_igr_eWard
`
`I
`
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`
`i 4.18
`
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`
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`U! G
`
`4.86
`4.21
`
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`
`3.26
`
`3.70
`
`4.46
`
`6.57
`4.93
`4.57
`OO
`
`I
`
`III
`
`
`
`
`
`
`
`I
`ISpiritu—al_
`I
`ILoss o_f_t_i1lie and space
`I
`Unity o_f-self and environment
`I
`EnjoyǤ_o-thers
`I
`IPrior related involvement
`[F1n':__::J
`4.06
`Actiorgehavior
`.
`I
`Goals :l——d_structure I
`
`
`A
`
`.
`
`N x] I-4
`
`2.74
`
`2.90
`
`us4=~3°?’'ix)ow3towoo
`
`
`
`maCu:O*
`U.)I
`
`n-—-l\)-¥>-Pr-|Ox
`
`-4.04*
`I
`
`i
`-0.16
`
`-
`
`.
`
`ko-‘>0U‘*-remi
`4>-hi
`.
`H
`n--H
`0.93
`
`O U! \O
`.
`2.86
`3-46 1
`\o.:>-oxtxs
`186
`.257
`H
`4.86
`-7. 1*
`
`.
`
`4:\)\)mko -as
`
`*l
`
`4.04
`5.00
`@
`
`
`N2t6_s.
`1.Values of 3.5 or more indicate endorsement.
`2. *Significant at an alpha level of .05 divided among 27 comparisons (Bonferroni correction for
`multiple tests).
`'
`'
`
`With no significant differences between tennis players and elite athletes from other sports on the
`Experience Questionnaire (Privette, 1984) items overall and the majority of individual items, and strong
`
`flow experience, Young proposed that the finding of
`significant differences between tennis players and elite athletes on approximately one quarter of 27
`items contained in the Experience Questionnaire is evidence ofindividual differences for athletes across
`sports in the phenomenology of flow. Further, it was noted that the fact that many of the items of the
`inventory had to be discarded due to inadequate Cronbach apha coefficient values was indicative that
`tennis players as a group display variation in the experience of flow.
`
`»
`
`Summary
`
`

`
`participation are experienced at varying levels ofintensity and complexity by individuals across sports.
`The time is ripe for research to further e
`'
`'
`of varying skill levels across a range of sports.
`
`Apter, M. J. (1982). The ex erience of motivation: The theo
`Academic Press.
`
`of s cholo ical reversals. London:
`
`References
`
`Apter, M. J. (1989). Reversal theo
`
`ry: Motivation, emotion and personality. London: Routedge.
`Clarkson, M. (1999). Competitive fire. Champaign, IL: Human Kinetics.
`Cooper, A. (1998). Playing in the zone: Exploring the spiritual dimensions ofsport. Boston:
`Shambhala.
`'
`
`Csikzentmihalyi, M. (1990). Flow: The psychology ofoptimal experience. New York: Harper &
`
`Rowe.
`
`Douillard, J. (.1994). Body, mind and sport. New York: Three Rivers Press.
`Garfield, C., & Bennett, H. (1984). Peak erformance: Mental trainin techni ues of the world's
`greatest athletes. New York: Warner Bros.
`
`Goldberg, A. S. (1998). Sports slump busting. Champaign, IL: Human Kinetics.
`Heathcote, F. (1996). Peak performance: Zen and the sporting zone. Dublin, Ireland: Wolfhound.
`Jackson, S. A. (19912). Athletes i_n flow: A
`qualitative investigation of flowstates in e1ite_figure
`skaters. Journal of Appli ad Sport Psychology, 4(2), 161-180.
`
`Jackson, S. A. (1995). Factors influencin
`Applied Sport Psychologyy;/_._ 138-166.
`
`g the occurrence of‘flow states in elite athletes. Cfi‘
`
`Jackson, S. A. (1996). Toward a conceptual understandin
`Research Quarterly for Exercise and Sport, 67(1), 76-90.
`
`g to the flow experience in elite athletes.
`
`114-f,.".//.{r"nu..—L1_1..;_'-'.
`
`'
`
`1
`
`»
`
`"' "
`
`

`
`Ravizza, K. (1984). Qualities ofthe peak experience.
`Psychological foundations of sport (pp. 452-461). Champ
`Shainberg, L. (1989). Finding the zone.
`
`In J. M. Silva & R. S. Weinberg (Eds.),
`aign, IL: Human Kinetics.
`
`‘New York Times Magazine, pp. 34-3 6, 38-39
`Yeagle, E., Privette, G., & Dunham, F. (1989). Highest happiness: An analysis ofartists’ peak
`experience. Psychological Reports, 65, 523-530.
`
`Young, J.A. (199%). Professional
`tennis players in flow: Flow theory and reversal theory
`perspectives. Unpublished doctoral thesis. Monash University at Melbourne.
`Young, J.A. (1999
`
`b, May). In the zone. Tennis, pp. 40-41.
`Young, J.A. (l999c). Zoning in on peak performance. Tennis News, 99 (9), 8.
`1). The art of finding the zone [On-
`line]. Available: HYPERLINK
`l_1tt_p:[/wwwtennisaustral
`l
`'ja.com.au/ta/Tenn.'. .sf/tmlmedia/b
`od
`findin the zone.htrn
`_____________________¥=___gr__..._____
`
`
`
`‘
`
`V Top of Page
`
`
`We look forward to your comments and feedback. Simply
`
`
`e-mail Athletic Insight.
`
`Mental Health Net Award Winner
`Inc.
`Copyright 0 1999 Athletic Insight,
`ISSN 1536-0431
`
`I’1fl'h‘//\1+xrur a+M..+:,.:..-:..1-¢ -
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`
`
`Exhibit 3Exhibit 3
`
`

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