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`ATTORNEYS AT LAW
`28 State Street
`
`Amy B. Spagnole, Esq.
`aspagnole@haslaw.com
`Direct (61 7) 3 78-4204
`
`Boston, MA 02109-1775
`TEL: 617.345.9000
`FAX: 617.345.9020
`www.hasIaw.com
`
`IllllllllllllllllllllllllllHlllllllllllllllllllll
`
`O1-03-2006
`': s =*:e ’
`.
`-I. 8. Tlvorc/1-M Ma“ aim Dr “H
`a
`
`December 30, 2005
`
`VIA FIRST CLASS MAIL
`
`United St.ates Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Re:
`
`Notice of Opposition
`of United States Trademark
`
`Application No.: 78/598,876
`Applicant: ZoneChefs LLC
`Mark: ZONECHEFS
`Class: 5
`
`Dear Madam:
`
`The following documents are submitted in connection with U.S. Application Serial No.
`78/598,876, filed by ZoneChefs LLC, for the mark ZONECHEFS in International Class 5 on the
`Principal Register:
`
`1. Notice of Opposition With Exhibits 1-9;
`
`2. Opposition fee, $300.00, by check No. 68558 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
`
`ly,
`
`flA
`
`Am . Spagnol
`
`Enclosures
`
`cc:
`
`Deborah L. Benson (w/o Encl.)
`
`565043
`
`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
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`H|||||||l||||||l|||||lllll||||1|||||||ll|||||||||
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`01-03-2006
`, 5 Dater-1a.TMOrc/TN‘ Maul icptbt :41‘
`
`Opposition N 0.
`
`Mark:
`Serial No.:
`Class:
`
`ZONECHEFS
`78/598,876
`5
`
`)
`
`) )
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`.
`BARRY D. SEARS Ph.D.,
`
`Opposer’
`
`v.
`
`ZONECHEFS, LLC,
`
`Applicant.
`__
`
`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. 78/598,876 for the
`
`mark ZONECHEFS for “vitamins and nutritional supplements, dietary supplements in the form
`
`of nutritional bars and nutritional drinks,” in International Class 5 on the Principal Register filed
`
`on March 31, 2005 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:
`
`01/05/20% GTDIHISB 00000050 78598876
`
`01 FC:660E
`
`300.00 I!’
`
`FACTS
`
`l.
`
`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
`
`564049
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`

`
`CAFE, ZONE CUISINE, ZONE SKIN CARE, ZONERX, and DR. SEARS ZONE, in
`
`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 cormectzion 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.”) 1l 1, attached
`
`hereto at Exhibitg.
`
`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. BL 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.” Li. 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. Q 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.
`
`#564049
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`2
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`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
`
`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”). 1; at ‘ll 5.
`
`10.
`
`Dr. Sears is well known as the source of ZONE branded products and services.
`
`1 1.
`
`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. Li.
`
`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.
`
`I_d_. at 1| 8.
`
`14.
`
`More than fi_\/Q million hard cover copies of Dr. Sears’ ZONE branded books have
`
`been sold in the United States alone. E, at 119.
`
`15.
`
`Dr. Sears’ works have been translated into Q languages and are sold in at least Q
`
`foreign countries. E, 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
`
`#564049
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`3
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`

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`taped appearances, including seminars, conferences, radio shows, and network television
`
`interviews, throughout the country. Sears Decl. at 1[ 11.
`
`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.
`
`I_d.
`
`at 1] 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.
`
`1g1_. 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.
`
`I_d_. 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. Q, at ‘H 15.
`
`22.
`
`Byway of example, Opposer owns the following United States Trademark
`
`Registrations:
`
`#564049
`
`4
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`

`
`Mark:
`
`Registration No.:
`Registration Date:
`App. Date:
`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:
`
`ZONE
`
`2,689,749
`
`February 25, 2003
`May 22, 2000
`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:
`
`Registration No.:
`Registration Date:
`App. Date:
`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
`
`#564049
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`

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`Date of First Use
`
`In Commerce:
`
`June 2000
`
`Goods:
`
`Skin care products, namely soaps, lotions, creams, and oils
`for the face, body, and hair.
`
`Mark:
`
`OMEGAZONE
`
`{egistration No.:
`App. Date:
`Registration Date:
`Date of First Use:
`Date of First Use
`
`2,863,212
`November 1, 2001
`July 13, 2004
`March 1, 2002
`
`In Commerce:
`Goods:
`
`March 1, 2002
`Nutritional food bars
`
`23.
`
`In accordance with Sections 7(b), 22 and 33(a) of the Lanham Trademark Act,
`
`Opposer’s above-cited registrations constitute prima facie 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. 78/598,876
`
`for ZONECHEFS on March 31, 2005.
`
`26.
`
`The Applicant seeks to register ZONECHEFS as a trademark for “vitamins and
`
`nutritional supplements, dietary supplements in the form of nutritional bars and nutritional
`
`drinks,” in Intemational Class 5.
`
`27.
`
`App1icant’s Application Serial No. 78/598,876 for ZONECHEFS was filed on
`
`March 31, 2005 in the United States Patent and Trademark Office.
`
`#564049
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`5
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`28.
`
`Application Serial No. 78/598,876 was filed under Section 1(b) of the Trademark
`
`Act claiming a bona fide intent to use the mark in commerce in connection with “vitamins and
`
`nutritional supplements, dietary supplements in the form of nutritional bars and nutritional
`
`drinks”.
`
`29.
`
`Since Application Serial No. 78/598,876 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. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer coined and began using his ZONE Marks in 1995.
`
`31.
`
`Application Serial No. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer’s date of first use of May 1995 for ZONE (Reg. No. 2,689,749).
`
`32.
`
`Application Serial No. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer’s date of first use of June 2000 for ZONE SKIN CARE (Reg. No. 2,623,974).
`
`33.
`
`Application Serial No. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer’s date of first use of April 23, 2002 for ZONERX (Reg. No. 2,929,836).
`
`34.
`
`Application Serial No. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,968,210).
`
`35.
`
`Application Serial No. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,997,305).
`
`35.
`
`Application Serial No. 78/598,876 was filed on March 31, 2005, long after
`
`Opposer’s date of first use of November 1, 2001 for OMEGAZONE (Reg. No. 2,863,212).
`
`36.
`
`The Applicant’s ZONECHEFS mark and the Opposer’s ZONE Marks are
`
`virtually identical. in sound and appearance and create the same commercial impression.
`
`#564049
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`37.
`
`The term ZONE comprises the dominant portion of Applicant’s ZONECHEFS
`
`mark.
`
`38.
`
`The term ZONE comprises the dominant portion of Opposer’s ZONE Marks,
`
`including Opposer’s ZONE, ZONE SKIN CARE, ZONERX, ZONE CUISINE and
`
`OMEGAZONE marks.
`
`39.
`
`The term ZONE in the Applicant’s mark ZONECHEFS has the identical meaning
`
`as the term ZONE in Opposer’s registered marks and common law marks.
`
`40.
`
`The term ZONE in ZONECHEFS 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 goods are advertised as all about “hormonal 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.
`
`42.
`
`The Applicant’s goods, as set forth in the Application Serial No. 78/598,876, and
`
`Opposer’s ZONE branded health and nutrition goods and services are highly related, if not
`
`identical, goods.
`
`44.
`
`The goods set forth in Application Serial No. 78/598,876 are “vitamins and
`
`nutritional supplements, dietary supplements in the form of nutritional bars and nutritional
`
`drinks.”
`
`45.
`
`Opposer’s Registration No. 2,863,212 for OMEGAZONE is for “nutritional food
`
`bars.”
`
`#564049
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`46.
`
`Nutritional food bars are highly related, if not identical, to vitamins and
`
`nutritional supplements, dietary supplements in the form of nutritional bars and nutritional
`
`drinks.
`
`47.
`
`The goods set forth in Opposer’s Reg. No. 2,689,749 for ZONE are “books in the
`
`field of diet and nutrition.”
`
`44.
`
`A.pplicant’s ZONECHEFS vitamins and nutritional supplements, dietary
`
`supplements in the form of nutritional bars and nutritional drinks are specifically concerned with
`
`diet and nutrition. Print cuts from Applicant’s website are attached at Exhibit 5.
`
`45.
`
`Applicant’s Application Serial No. 78/598,876 does not limit the channels of
`
`trade through which its goods will travel nor does it limit the consumers to whom such goods are
`
`directed.
`
`46.
`
`Applicant’s goods are presumed to travel through all channels of trade and to be
`
`directed towards all relevant consumers.
`
`47.
`
`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,
`
`2,968,210 and 2,863,212.
`
`48.
`
`The Applicant’s ZONECHEFS goods and the Opposer’s ZONE branded goods
`
`and services will be sold or offered through the same channels of trade.
`
`49.
`
`The Applicant’s ZONECHEFS goods and the Opposer’s ZONE branded goods
`
`and services will be sold to the same customers.
`
`50.
`
`Consumers are likely to believe that Applicant’s goods, 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.
`
`#564049
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`9
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`51.
`
`Consumers are likely to expect that Applicant’s goods, similarly marked and
`
`creating an identical commercial impression -- as a result of the use of the term ZONE in the
`
`context of vitamins, nutritional supplements and meal replacement bars and drinks designed to
`
`assist diete:rs with hormonal control and insulin balance --, are of the same quality as Opposer’s
`
`ZONE branded goods and services.
`
`52.
`
`Upon information and belief, Applicant adopted and applied to register the mark
`
`ZONECHEFS 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.
`
`53.
`
`Upon information and belief, Applicant willfully copied Dr. Sears’ ZONE Marks
`
`in choosing ZONECHEFS in a deliberate attempt to associate its services with Opposer,
`
`Opposer’s ZONE Marks and the good will therein.
`
`54.
`
`55.
`
`Applicant maintains a website at the Internet address <zonechefs.com>.
`
`Applicant provides several dietary tips on its <zonechefs.com> website.
`
`56.
`
`Applicant’s dietary tips are virtually identical to tips that Dr. Sears offers in his
`
`own ZONE branded publications.
`
`57.
`
`Applicant’s <zonechefs.com> website suggests using the palm of your hand to
`
`determine the correct amount of protein to consume at each meal. Print outs from Applicant’s
`
`<zonechefs.com> website are attached at Exhibit 6.
`
`58.
`
`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. 78/598,876 on March 31, 2005, describing this tip are attached at Exhibit
`
`1.
`
`#564049
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`10
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`59.
`
`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.
`
`60.
`
`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.
`
`61.
`
`Dr. Sears sells his own ZONE branded phannaceutical grade fish oil supplements.
`
`L; at 11 17.
`
`62.
`
`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
`
`63.
`
`Applicant is using the federal trademark registration symbol, ®, in connection
`
`with the ZONE CHEFS mark for vitamins and nutritional supplements on its <zonechefs.com>
`
`website. Print outs from Applicant’s website showing Applicant’s use of the federal registration
`
`symbol in connection with the ZONE CHEFS mark are attached at Exhibits 4-6 and §-2.
`
`64.
`
`Applicant does not own a United States federal trademark registration for the
`
`trademark ZONE CHEFS for vitamins and nutritional supplements.
`
`FIRST GROUND FOR RELIEF
`
`jUNDER15 U.S.C. § 1052jd)[
`
`65.
`
`Opposer incorporates by reference paragraphs 1 through 64 as if fully set forth
`
`herein.
`
`66.
`
`The ZONE Marks have been used continually by Opposer since a date prior to
`
`any date on which Applicant may rely.
`
`#564049
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`1 1
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`67.
`
`Applicant’s ZONECHEFS mark is identical or confiisingly similar to Opposer’s
`
`ZONE Marks in appearance and in commercial impression.
`
`68.
`
`The goods of Applicant to be offered under its ZONECHEFS mark are identical
`
`or related to Opposer’s goods and services under the ZONE Marks and to Dr. Sears himself.
`
`69.
`
`The use by Applicant of ZONECHEFS for the goods 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 goods are
`
`endorsed, sponsored, or in some way connected with Opposer.
`
`70.
`
`Use of ZONECHEFS by Applicant is likely to cause confusion, cause mistake or
`
`to deceive the public into the belief that the services offered under ZONECHEFS 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).
`
`SECOND GROUNDS FOR RELIEF
`
`(MISUSE OF THE FEDERAL REGISTRATION SYMBOL)
`
`71.
`
`Opposer incorporates by reference paragraphs 1 through 70 as if fully set forth
`
`herein.
`
`72.
`
`Applicant is using the federal trademark registration symbol, ®, on its
`
`<zonechefs.com> website in connection with the ZONE CHEFS mark for vitamins and
`
`nutritional supplements.
`
`73.
`
`Applicant does not own a United States trademark registration for the trademark
`
`ZONE CHEFS for vitamins and nutritional supplements.
`
`74.
`
`Upon information and belief, Applicant is using the federal trademark registration
`
`symbol in connection with the ZONE CHEFS mark for vitamins and nutritional supplements
`
`#564049
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`12
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`
`with the intention of deceiving the public or others in the trade into believing that the mark is
`
`registered.
`
`75.
`
`Applicant’s improper use of the federal trademark registration symbol in
`
`connection with the ZONE CHEFS mark for vitamins and nutritional supplements when such
`
`mark has not been so registered constitutes fraud.
`
`WHEREFORE, the Opposer requests that this opposition be sustained and that
`
`Trademark Application Serial No. 78/598,876 filed on March 31, 2005 by Zone Chefs, LLC be
`
`rejected and its registration refused.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PHD.
`
`By his attorneys,
`
`L/Klflizeborah 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
`
`CIIITIFICATI OI MAILING
`tlntthlleorrupoulucelubcingdepuited
`Ihenlry
`8ntnl’osul8u'vIeoufln¢-clan mama an
`with tho!)
`envelope addressed to the Commissioner for Trademark.
`P.0. box 145
`11313-I
`Cl
`
`#5 64049
`
`1 3
`
`

`
`Exhibit 1
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`) ) )
`
`) )
`
`BARRY D. SEARS Ph.D.,
`
`Opposer,
`
`v.
`
`ZONECHEFS, LLC,
`
`)
`)
`)
`)
`)
`Applicant.
`j_T____)
`
`Opposition No.
`
`Mark:
`Serial No.:
`Class:
`
`ZONECHEFS
`78/598,876
`5
`
`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.
`
`

`
`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.
`
`list.
`
`'7
`/.
`
`Several of these books have appeared on The New York Times bestseller
`
`8.
`
`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.
`
`#564050
`
`2
`
`

`
`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 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.
`
`#564050
`
`3
`
`

`
`l7.
`
`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 mayjeopardize the validity ofthisdeclaratim.
`
`: 3
`
`7,
`Decemberé? 2005
`
`Barry D. Sears Ph.D.
`
`#564050
`
`4
`
`

`
`Exhibit 2
`
`

`
`The Zone: An Empirical Study
`
`page 1 of8
`
`1?» Qelitié
`
`The Zone: Evidence of a Universal Phenomenon for-Athletes
`Across Sports
`JanetA Young and Michelle D Pain
`-Monash University, Melbourne, Australia
`
`QSIBACLT
`
`Introduction
`
`Theoretical E rameworks
`
`Zone Sport 13esearch
`
`Universalitv of the Sport Zone
`
`ual'ta ' e ‘
`
`al ' 1
`
`_ uantitafve
`
`nalysi_s_
`
`1111111151
`
`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 (1999a) 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
`athlete differences are evident.
`
`1999;_ Go1d_berg, 1998). Denoted as the pi
`
`ature is replete with references. to "the zone" (e.g., Clarkson,
`'
`ete, the zone characterises a
`
`peaks", "perfect moments", "mindfulness" "
`literature, the terms zone and flow are in fact used interchangeably
`Heathcote, 1996).
`
`Theoretical Frameworks for Understanding the.Zone
`
`Studies of the zone or "zone '
`Garfield and Bennett (1984);. Jae
`
`hffpi//WVYW.aI’.h1eticin.<io‘h+ nnm /‘fix, 1 TM’: mu
`
`

`
`The Zone: An Empirical Study I
`
`.
`
`1'99,9d). These studies:
`phenomena.
`
`have investigated both the characteristics and dynamics ofthe zone or zone-like
`In one ofthe first studies to address the exp
`
`http://~fMMath1eticinsi:zht.cnm/vni1two/D..-”.
`
`. —-
`
`

`
`' The Zone: An Empirical Study
`
`Jacksonls (1993, 1996:) 28 eliteiathletes (14 male and 14 female, with an equal number from Australia
`and New Zealand, representing seven sports [four athletes p
`- rowing, swimming, cycling,
`'
`
`Table 1.
`
`Theoretical Dimensions ofFlow and Miscellaneous Cate o
`Percenta e* of Tennis Pla ers and Elite
`Athletes Citing Themes Within Each Dimension and Percenta e ofAll Raw Data Themes Re resented
`by Each Dimension
`
`
`
`
`
`Elite Athletes
`(Jackson, 1996)
`
`
`
`Flow Dime
`
`nsion
`
`
`I
`
`
`
`
`W
`
`I 1. Challenge-skill balance
`2. Action-awareness merging
`
`
`
`httpi//Wr\TW.3fl1lP.f1'r‘.ine1'nln+ M... nun 7- o M
`
`

`
`A multiple tests, are reported’. in Table 2, with items listed in abbreviated fo
`Jackson (1993).
`
`
`
`Clear inner process
`
`Felt all together
`[Awareness ofpower
`
`{Clear focus
`‘Strong sense ofself
`
`
`
`
`
`l'Yl‘l'1‘\'//\xn1nxr a+1-.1a+:,.:..-:..1-z - .
`
`I
`
`I
`I
`I
`
`‘
`
`________________
`
`

`
`The Zone: An Empirical Study.
`
`Page..6 of 8
`
`WHillEllijil
`
`I
`
`_ -4.18
`
`468
`
`3.65
`
`Free from outer restrictions
`Need to complete
`__j_
`-
`
`Absorption__:.
`‘
`Intenti_c_>_n__
`Person_al_r_esponsibility
`Overwhewlmed other senses, thoughts
`__
`
`
`Process "clicked"
` %derstandmg, expression
`Actionfivughts spontaneous
` rracticed
`Perfon@:
` 11—CI-1—t_
`
`[Intrinsic reward
`
`[Loss ofself
`
`A
`
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`lllllll
`
`4.46
`6.57
`4.93
`
`:"‘ U! xx
`
`2.00
`
`2.36
`
`3.46
`3.86
`-2.57
`4.86
`
`5.00’
`
`Spiritueg___
`Loss of-t'—1m_:_;and space
`Unity o:_——n._.
`
`HIii
`
`,
`
`,
`Enjoyed others
`Prior related involvement
`Fun
`Action oLl§l
`
`Goals and—st—ructure
`l
`
`
`
`
`
`‘
`
`>—- -§
`
`E
`
`*
`
`xx so o
`
`-x-
`
`4
`-
`-A-P.l>.UI
`'9
`
`3 \D
`
`-0.41
`
`0.93
`
`-0.59
`
`
`
`-6.55*
`
`_
`
`. 4.65*
`1
`_' I
`4.86
`4.21
`4.29
`4.50
`3.26
`
`3.32
`
`4.52
`
`3.13
`
`- 6.44
`
`4.87
`
`I\) \} )--A
`
`2.03
`
`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
`process and focus, fulfilment, intention, fun, high performance, and intrinsic reward), Young (1999a)
`suggested that tennis players and elite athletes from other sports experience flow in qualitatively similar
`manners. Notwithstanding this notion of a common 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.
`
`I
`
`. Summary
`
`

`
`-' The Zone:-An Empirical .Study
`
`’ . Young's (1999a) comparative analysis of flow e
`other sports, together with studies that h
`zone or zone~like stat
`'
`es in sport, support the notion of a uni
`describe salient feature
`'
`
`References
`
`Apter, M. J. (1982). The experience ofmotivation: The theory ofpsychological reversals. London:
`Academic Press.
`-
`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.
`A
`'
`
`I
`
`. Csikzentmihalyi, M. (1975). Play and intrinsic rewards.
`
`63.
`
`Journal of Humanistic Ps cholo
`
`15 41-
`
`Csikzentmihalyi,
`Rowe.
`
`(1990). Flow: The psychology ofoptimal experience. New York: Harper &
`‘
`
`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.
`
`flow: A qualitative investigation offlowstates in elitefigure
`Jackson, S. A. (1992). Athletes
`skaters. Journal ofApplied Sport Psychology, 4(2), 161-180. H
`.
`
`Jackson, S. A. (1995). Factors influencing the occurrence of‘flow states in elite athletes. _Jp;1;n_al9_f
`Applied Sport Psychology,_’Z, 138-166.
`_
`.
`,
`'
`Jackson, S. A. (1996). Toward a conceptual understanding to the flow experience in elite athletes.
`Research Quarterly for Exercise and Sport, 67(1), 76-90.
`
`lqffv;-//~vv+-wv. ...L1-‘l . 1‘
`
`'
`
`

`
`Murphy, S. (1996). The achievement zone. New York: Berkley.
`
`Ravizza, K. (I984). Qualities ofthe peak experience. In J. M.
`'
`Psychological foundations ofsport (pp. 452-461). Champaign,
`Silva & R. S. Weinberg ('Eds.),
`IL: Human Kinetics.
`Shainberg, L. (1989). Finding the zone." New York Times Magazine, pp. 3436, 38-39
`Yeagle, E., Privette, G., & Dunharn, F. (1989). Highest happiness: An analysis ofartists’ peak
`experience. Psychological Reports, 65, 523-530.
`
`Young, J.A. (1999a‘I Professional