throbber
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
`of United States Trademark
`
`Application No.: 78/655,799
`Applicant: ZoneChefs LLC
`Mark: ZEN ZONECHEFS
`Class: 39
`
`Dear Madam:
`
`HinckleyA|lenSnydenu»
`ATTORNEYS AT LAW
`28 State Street
`Boston, MA 02109-1775
`TEL: 617.345.9000
`FAX: 617.345.9020
`www.has|aw.com
`
`Amy B. Spagnole, Esq.
`aspagn0le@haslaw. com
`Direct (61 7) 3 78-4204
`
`Illllllllllllllll||l||llllllllllllllllllllllllllll
`
`01-O3-2006
`L s =aren:aworc/TM Mali 2:910! *1‘
`
`The following documents are submitted in connection with U.S. Application Serial No.
`78/655,799, filed by ZoneChefs LLC, for the mark ZEN ZONECHEFS in International Class 39
`on the Principal Register:
`
`1. Notice of Opposition With Exhibits 1-9;
`
`2. Opposition fee, $300.00, by check No. 68559 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
`
`er ly,
`
`&
`
`.Spagnol
`
`y
`
`Enclosures
`
`cc:
`
`Deborah L. Benson (w/o Encl.)
`
`565042
`
`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
`
`Opposition No.
`
`Mark:
`Serial No.:
`Class:
`
`ZEN ZONECHEFS
`78/655,799
`39
`
`1mmumummuummuumummum
`
`)
`
`) )
`
`) )
`
`)
`)
`)
`)
`)
`)
`
`BARRY I). SEARS Ph.D.,
`
`Opposer,
`
`v.
`
`ZONECHEFS, LLC,
`
`Applicant.
`__
`
`NOTICE OF OPPOSITION
`
`01-03-2005
`K25 =atert
`1-
`.
`& ”°””“M=LFwtDrxn
`
`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. 78/655,799 for the
`
`mark ZEN ZONECHEFS for “food delivery services,” in International Class 39 on the Principal
`
`Register filed on June 22, 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:
`
`01/05/2006 BTIIIWSE 00000047 78655799
`
`01 FC:6402
`
`300.00 133
`
`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
`
`5 64044
`
`

`
`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 fiaods, 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 (1.5) years ago. fig Declaration of Barry D. Sears (“Sears Decl.”) 11 1, attached
`
`hereto at Exhibig.
`
`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. Li. at 1l 2.
`
`5.
`
`Dr. Sears branded his writing, teaching and consulting on the benefits of an
`
`insulin balanced hormonal control diet with the term “ZONE.” Ld_. at 11 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
`
`#564044
`
`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”). hi at 1| 5.
`
`10.
`
`ll.
`
`Dr. Sears is well known as the source of ZONE branded products and services.
`
`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 ‘H 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.
`
`_1g_. at 1] 8.
`
`14.
`
`More than fig million hard cover copies of Dr. Sears’ ZONE branded books have
`
`been sold in the United States alone. Id, at 19.
`
`15.
`
`Dr. Sears’ works have been translated into Q languages and are sold in at least 49
`
`foreign countries. Li. 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 1] 11.
`
`#564044
`
`3
`
`

`
`17..
`
`ln 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. Li.
`
`at 11 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. L; 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. 1; at 11 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
`
`#564044
`
`4
`
`

`
`Date of First Use:
`Date of First Use
`
`May 1995
`
`In Commerce:
`Goods:
`
`May 1995
`Publications, namely a series of books in the field of diet
`and nutrition.
`
`Mark:
`
`ZONERX
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`Date of First Use
`
`In Commerce:
`Goods:
`
`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 I, 2004
`September 2003
`
`September 2003
`Prepared and packaged entrees consisting primarily of
`meat, fish, poultry, or vegetables.
`
`Mark:
`
`ZONE CUISINE
`
`{egistration No.:
`App. Date:
`Legistration Date:
`Date of First Use:
`Date of First Use
`
`2,968,210
`December 13, 2002
`July 12, 2005
`September 2003
`
`In Commerce:
`Goods:
`
`September 2003
`Catering services.
`
`Mark:
`
`ZONE SKIN CARE
`
`Registration No.2
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`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.
`
`#564044
`
`5
`
`

`
`23..
`
`lln 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. 78/655,799
`
`for ZEN ZONECHEFS on June 22, 2005.
`
`26.
`
`The Applicant seeks to register ZEN ZONECHEFS as a trademark for “food
`
`delivery services,” in lntemational Class 39.
`
`27.
`
`Applicant’s Application Serial No. 78/655,799 for ZEN ZONECHEFS was filed
`
`on June 22, 2005 in the United States Patent and Trademark Office.
`
`28.
`
`Application Serial No. 78/655,799 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. 78/655,799 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. 78/655,799 was filed on June 22, 2005, long after Opposer
`
`coined and began using his ZONE Marks in 1995.
`
`31.
`
`Application Serial No. 78/655,799 was filed on June 22, 2005, long after
`
`Opposer’s date of first use of May 1995 for ZONE (Reg. No. 2,689,749).
`
`#564044
`
`5
`
`

`
`32.
`
`Application Serial No. 78/655,799 was filed on June 22, 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. 78/655,799 was filed on June 22, 2005, long after
`
`Opposer’s date of first use of April 23, 2002 for ZONERX (Reg. No. 2,929,836).
`
`34.
`
`Application Serial No. 78/655,799 was filed on June 22, 2005, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,968,210).
`
`35.
`
`Application Serial No. 78/655,799 was filed on June 22, 2005, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,997,305).
`
`36.
`
`The Applicant’s ZEN ZONECHEFS mark and the Opposer’s ZONE Marks are
`
`virtually identical in sound and appearance and create the same commercial impression.
`
`37.
`
`The term ZONE comprises the dominant portion of Applicant’s ZEN
`
`ZONECHEFS 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 ZEN ZONECHEFS has the identical
`
`meaning as the term ZONE in Opposer’s registered marks and common law marks.
`
`40.
`
`The term ZONE in ZEN ZONECHEFS refers to and indicates compliance with
`
`Dr. Sears and his criteria for an insulin and hormonal balanced diet. Print cuts from Applicant’s
`
`website are attached at Exhibit 3.
`
`41.
`
`Applicant’s food delivery services 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.
`
`#564044
`
`7
`
`

`
`42.
`
`The Applicant’s services, as set forth in the Application Serial No. 78/655,799,
`
`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. 78/655,799 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 ZEN ZONECHEFS food 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. 7 8/655,799 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 charmels 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.
`
`#564044
`
`3
`
`

`
`52.
`
`The Applicant’s ZEN ZONECHEFS 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 ZEN ZONECHEFS 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 charmels 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
`
`ZEN 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.
`
`57.
`
`Upon information and belief, Applicant willfully copied Dr. Sears’ ZONE Marks
`
`in choosing ZEN ZONECHEFS in a deliberate attempt to associate its services with Opposer,
`
`Opposer’s ZONE Marks and the good will therein.
`
`58.
`
`Applicant maintains a website at the Internet address <zonechefs.com>.
`
`59.
`
`Applicant provides several dietary tips on its <zonechefs.com> website.
`
`60.
`
`Applicant’s dietary tips are virtually identical to tips that Dr. Sears offers in his
`
`own ZONE branded publications.
`
`#564044
`
`9
`
`

`
`61.
`
`.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.
`
`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. 78/655,799 on June 22, 2005, 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_d. at ‘H 17.
`
`66.
`
`Applicant touts one of its chefs as the “former executive pastry chef to Dr. Barry
`
`Sears (author of the ZONE DIET).” Print outs 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.
`
`#564044
`
`10
`
`

`
`69.
`
`App1icant’s ZEN ZONECHEFS 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 ZEN ZONECHEFS 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 ZEN ZONECHEFS 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 App1icant’s services are
`
`endorsed, sponsored, or in some way connected with Opposer.
`
`72.
`
`Use of ZEN ZONECHEFS by Applicant is likely to cause confusion, cause
`
`mistake or to deceive the public into the belief that the services offered under ZEN
`
`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. § l052(d).
`
`#564044
`
`1 1
`
`

`
`Wl-IEREFORE, the Opposer requests that this opposition be sustained and that
`
`Trademark Application Serial No. 78/655,799 filed on June 22, 2005 by Zone Chefs, LLC be
`
`rejected and its registration refused.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PH.D.
`
`B
`
`’
`
`ttorneys,
`
`/I//2
`
`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
`
`cumncxn or MAILING
`«-« - «-=-v--- '- ;..-=*:..-:.=:.°:.2~::.
`n-mu
`with the Unit sum Postal Sorvlceu am magnum
`cnveiope uldrused to tho CoIIIIllIIl0||¢|' T0’
`no. box 1451.
`Vh1|Ih33313'1‘5‘-"
`
`
`
`#564044
`
`12
`
`

`
`Exhibit 1
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.
`
`Mark:
`Serial No.:
`Class:
`
`ZEN ZONECHEFS
`78/655,799
`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.
`
`

`
`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.
`
`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 a.t least forty (40) foreign countries.
`
`1.1.
`
`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.
`
`#564045
`
`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.
`
`#564045
`
`3
`
`

`
`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 mayjeopardize the Validity ofthisdeclaraj.
`
`_
`DecemberZ_5, 2005
`
`Barry D. Sears Ph.D.
`
`#564045
`
`4
`
`

`
`Exhibit 2
`
`

`
`The Zone: An Empirical Study
`
`.
`
`_3
`
`f
`
`«
`
`Page 1 of s
`
`I T
`
`he Zone: Evidence of a Universal Phenomenon for~Athletes
`Across Sports
`JanetA Young and Michelle D Pain
`~Monash University, Melbourne, Australia
`
`ABSTRACT
`
`H Introduction
`
`Iheoretical Frameworks
`
`Zone Sport 13‘esearch
`
`Universality of the Sport Zone
`
`Qualitatix’e Analysis .
`
`Quantitafive Analvsis
`
`1111111151
`
`References
`
`ABSTRACT
`
`This paper examines the heightened states of consciousness during participation in sporttermed the zone
`or flow. 'Iheoretica.l frameworks and studies of the phenomenon are described. The notion of a universal
`zone in sport is explored with a review of Young's (199921) 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 flowAtheory's posited structure of flow consisting of
`eight dimensions. No significant differences were found between tennis players and elite athletes on the
`
`

`
`. Experience Questionnaire (Privett
`e, 1984). These analyses suggest that the zone
`universal phenomenon across spo
`or flow state is a
`rts, although intra-sport, and inter-
`athlete differences are evident.
`
`Introduction
`
`_
`peaks", "perfectmoments", "mindfulness
`
`nsciousness, the zone can be likened to the
`of ecstasy, transcendent or altered states of
`ariously denoted and include the concepts of
`"flow". In the sport psychology
`and synonymously (Cooper, 1998;
`
`hftpi//V‘/TKM’-athletiCin.cio.hr nnm/vn11T..mn'.~.
`
`'
`
`'
`
`' -
`
`

`
`The Zone: An Empirical Study
`
`19995). These studie
`phenomena.
`
`voluntary and not induced at will; and, unique and 11
`performance outcome. He also found that the athletes‘ mastering ofthe ba
`
`Elite athletes in Garfield and Bennett's (1984) study were asked to desc '
`
`, the conditions conducrve to optimal
`,
`dent and optimistic with
`
`'
`
`hi-TDI//WVYW.athl6tiClnSlQhtcnm/"VA!1TM?/E‘---1--’
`
`' H
`
`

`
`universal.
`
`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 RawData Themes Re resented
`by Bach Dimension
`
`______
`
`__.:.
`
`.___._
`
`
`
`
`
`
`
`
`
`fVf\v\A /V7-1 1 T, A n-\
`
`
`
`l 1. Challenge-skill balance I
`I2. Action-awareness merging
`3. Clear goals and feedback
`l4. Concentration I
`
`
`5. Lossself-consciousness I
`I6. Paradox ofcontrol
`I
`
`
`
`
`
`

`
`The Zone: An Empirical Study
`
`differences between tennis players‘ and elite athletes’ ratings ofthe importance ofexperiential correlates
`offlow, a one-way ANOVA test was conducted using mean item _scores. The test revealed there were no
`significant differences between tenms players and elite athletes on the items overall, E(1, 52) = 1.16, p
`> .05, MSE = 1.04.
`‘
`~
`‘
`
`Table 2.
`
`Mean Scores and t-values for Young's (l929a) Tennis Players and Jackson's (1993) Elite Athletes From
`Other Sports on Experience Questionnaire (Brivette, 1284) Items
`
`
`
`
`
`
`
`
`Clear inner process
`lFelt all together
`Awareness ofpower
`(Clear focus
`[Strong sense ofself
`
`
`
`
`
`_______.___________
`
`'
`I
`I
`I
`
`hfi».n.//“,1-xx/xxx n+1-\1¢.+.'n.'....:..1-z.
`
`_
`
`_
`
`rvr 14v
`
`_ _.
`
`

`
`The zone; An Empirical Study‘
`
`Page,6 of 3
`
`
`
`
`
`
`
`*
`
`43 o 4:-
`
`I‘-7 o-P- _.
`
`.03l—‘0.8
`
`.o:—-.Ur$-54>
`
`.'o -l>- |—‘
`
`s\>.o$-l>UIwxo“
`
`1.49
`
`.0\.4>U1\)UIO’\**
`
`
`
`3 .26
`
`3.70
`
`4.46
`
`6.57
`
`4.93
`
`4.29
`
`
`
`_
`
`
`
`.
`
` IIIIIIllll
`I
`
`
`
`
`
`3.65
`
`.V‘ o
`
`‘K-
`
`P ox U:
`I
`
`U.) 0 o
`
`4-86 %
`
`I
`- 4.18
`p
`I
`Erie from outer restrictions
`INeed to complete I
` Absorpt-ion
`
`Imtion
`IPersonal responsibility
`
`Egrwhewlmed other senses, thoughts
`
`Il’_:_c3_c_ess "clicked"
`
`I
`I_IZ—e_—-rs_cg1_2£_L_‘nderstanding, expression
`4.58
`I
`Acticfiioughts spontaneous
`E/__e—_r_1_EvE—as*practiced I
`Perfo—rrn_§ce
`.
`I
`6.44
`9EEBCD#3[/
`——
`4.87
`
`
`
`Intrinsic reward
`2.00
`'
`Loss of_s_e_lf
`l§2"iE:?1_: _ 2-86
`Loss @e and space
`,
`3.46
`Unity S??1:fand environment
`3.86
`
`IEnjoyed others
`_
`-2.57
`Prior related involvement
`4.86
`Fun
`4.04
`IAction. or behavior
`5.00‘
`
`Goals andsrructure
`
`_
`Notes.
`l.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 ofindividual items’, and strong
`endorsement fiom each group ofathletes for the key theoretical characteristics of flow (clear inner
`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
`'
`'
`'
`'
`'
`' evidence ofindividual differences for athletes across
`
`

`
`~' The Zone:<An Empirical Study
`
`References
`
`Apter, M. J. (19822). The experience ofmotivation: The theopy ofpsychological reversals. London:
`Academic Press.
`.
`Apter, M. J. (1989). Reversal theo
`
`ry: Motivation, emotion and personalig. 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
`‘
`
`63.
`
`. Csikzentrnihalyi, M. (1975). Play and intrinsic rewards. Journal ofHumanistic Psychology, 15, 41-
`
`Csikzentrnihalyi, 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. (1992). Athletes in flow: A qualitative investigation offlowstates in elitefigure
`skaters. Journal ofApplied Sport Psychology, 4(2), 161-180.
`.
`Jackson, S A (1993). Elite athletes in flow The psychology ofoptimal sport experience. (Doctoral
`dissertation, University ofNorth Carolina at Greensboro, 1992). Dissertation Abstracts International, 54,
`
`(1), 124-A
`
`Jackson, S. A. (1995). Factors influencing the occurrence of‘flow states in elite athletes. ‘
`Applied Sport Psychology_,_’_/, 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.
`
`1.++,;.//.+..--._i1_a..-
`
`-
`
`

`
`The Zone: An Empirical Study‘
`
`J Loehr, J. E. (1935). Mental toughness training for sports: Achieving athletic excellence. NewYork:
`Plume.
`.
`Loehr, J. E. (1995, July). Six keys to getting and staying in the zone. Tennis, p. 36.
`Maslow, A. H. (1962). Toward a psychology ofbeing. Princeton, NJ: Van Nostrand.
`Murphy, s. (1996).
` . New York: Berkley.
`
`Ravizza, K. (1984). Qualities ofthe peak experience. In J. M. Silva & R. S. Weinberg (Eds.)
`Psychological foundat:ions of sport (pp. 452-461). Champ
`Shainberg, L. (1989). Finding the zone.’New York Times Magazine, pp. 34-36, 38-39
`Yeagle, E., Privette, G., & Dunham, F. (1989). Highest happiness: An analysis ofartists’ peak
`experience. Psychological Reports, 65, 523-530.
`
`la
`Young, J.A. (199921). Professional tennis
`p yers in flow: Flow theory and reversal theor_v_
`perspectives. Unpublished doctoral thesis. Monash University at Melbourne.
`Young, J.A. (19991), May). In the zone. Tennis, pp. 40-41.
`
`Young, J. A. (1 999(1). The art offinding the zone [On-line]. Available: HYPERLINK ,
`l_1t_tp://www.tennisaustra]'ia.com.au/ta/Tenn.
`'. .sf/trn1media1_>ody_f1nding the zone.htm1
`
` ,_a.;?e2.;2§"re:rit tzf-:~::2§.a.’:';rai"Hs‘i-‘ez‘iriaef3»j.
`
`;_ .1
`
`'
`
`
`
`We look forward to your comments and feedback. Simply e-mail Athletic Insight.
`
`Mental Health Net Award Winner
`Copyright 0 1999 Athletic Insight, Inc.
`ISSN 1536-0431
`
`l'1l'Ih'//\+urur o+L1¢.+:,.:«-: -14
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`
`Exhibit 3
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