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`/L ATTORNEYS AT LAW
`28 State Street
`
`Boston, MA 02109-1775
`TEL: 617.345.9000
`
`FAX; 517_345_9020
`
`www.has|aw.com
`
`T
`
`TA B
`
`Amy 3- Spagnole. Esq.
`aSr"1g"0le@haSl0W-Com
`
`Direct (617) 378-4204
`
`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.: 78/655,807
`Applicant: ZoneChefs LLC
`Mark: KOSHER ZONECHEFS
`
`Class: 39
`
`Dear Madam:
`
`The following documents are submitted in connection with U.S. Application Serial No.
`78/655,807, filed by ZoneChefs LLC, for the mark KOSHER 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. 68560 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.
`
`
`
`Enclosures
`
`cc:
`
`Deborah L. Benson (w/o Encl.)
`
`565041
`
`|l|||||||l||||||l||l|||||||ll|||||l|||||||llllllll
`
`01-04-2006
`U.S. Patent & TMOfcITM Mail Rcpt Dt. #72
`
`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
`
`Opposition No.
`
`Mark:
`Serial No.:
`Class:
`
`KOSHER ZONECHEFS
`78/655,807
`39
`
`)
`
`) )
`
`) )
`
`)
`)
`)
`)
`)
`)
`
`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. 78/655,807 for the
`
`mark KOSHER 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:
`
`01/09/2006 BTHBHQSZ 00000056 70655807
`01 FC:6402
`300.00 DP
`
`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
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`5 64046
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`

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`connection with a wide variety of branded health and nutrition products and services, including
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`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. §§§ Declaration of Barry D. Sears (“Sears Decl.”) 1] 1, attached
`
`hereto at Exhibit 1.
`
`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.
`
`I_d_. 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; at {l 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. E, 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
`
`#5 64046
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`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”).
`
`I_d_. 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 OmegaRx Zone and The Anti-Inflammatory Zone. Sears
`
`Decl. at ‘l[ 6.
`
`12.
`
`Several of these books have appeared on The New York Times bestseller list. Id,
`
`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. E, at 1] 8.
`
`14.
`
`More than five million hard cover copies of Dr. Sears’ ZONE branded books have
`
`been sold in the United States alone.
`
`I_d_. at 119.
`
`15.
`
`Dr. Sears’ works have been translated into 2_2 languages and are sold in at least 419
`
`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 1] 11.
`
`#564046
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`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. Id
`
`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. 1; at {I 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_(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.
`
`I_d; at 1] 15.
`
`22.
`
`By way of example, Opposer owns the following United States Trademark
`
`Registrations:
`
`Mark:
`
`ZONE
`
`Registration No.2
`Registration Date:
`App. Date:
`
`2,689,749
`February 25, 2003
`May 22, 2000
`
`#564046
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`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.
`
`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.2
`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:
`
`Registration No.:
`App. Date:
`Registration Date:
`Date of First Use:
`Date of First Use
`
`ZONE CUISINE
`
`2,968,210
`December 13, 2002
`July 12, 2005
`September 2003
`
`In Commerce:
`Goods:
`
`September 2003
`Catering services.
`
`Mark:
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`Goods:
`
`ZONE SKIN CARE
`
`2,623,974
`September 24, 2002
`March 30, 2001
`June 2000
`
`June 2000
`Skin care products, namely soaps, lotions, creams, and oils
`for the face, body, and hair.
`
`#564046
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`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. 78/655,807
`
`for KOSHER ZONECHEFS on June 22, 2005.
`
`26.
`
`The Applicant seeks to register KOSHER ZONECHEFS as a trademark for “food
`
`delivery services,” in International Class 39.
`
`27.
`
`Applicant’s Application Serial No. 78/655,807 for KOSHER ZONECHEFS was
`
`filed on June 22, 2005 in the United States Patent and Trademark Office.
`
`28.
`
`Application Serial No. 78/655,807 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. 78/655,807 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. 78/655,807 was filed on June 22, 2005, long after Opposer
`
`coined and hegan using his ZONE Marks in 1995.
`
`31.
`
`Application Serial No. 78/655,807 was filed on June 22, 2005, long after
`
`Opposer’s date of first use of May 1995 for ZONE (Reg. No. 2,689,749).
`
`#564046
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`32.
`
`Application Serial No. 78/655,807 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. 78/655,807 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. 78/655,807 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. 78/655,807 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 KOSHER 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 KOSHER
`
`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 KOSHER ZONECHEFS has the
`
`identical meaning as the term ZONE in Opposer’s registered marks and common law marks.
`
`40.
`
`The term ZONE in KOSHER 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 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.
`
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`42.
`
`The Applicant’s services, as set forth in the Application Serial No. 78/655,807,
`
`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. 78/655,807 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 KOSHER 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. 78/655,807 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.
`
`#5 64046
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`52.
`
`The Applicant’s KOSHER 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 KOSHER 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 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
`
`KOSHER 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 KOSHER ZONECHEFS 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.
`
`60.
`
`Applicant provides several dietary tips on its <kosherzonechefs.com> website.
`
`Applicant’s dietary tips are virtually identical to tips that Dr. Sears offers in his
`
`own ZONE branded publications.
`
`#564046
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`61.
`
`Applicant’s <kosherzonechefs.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 <kosherzonechefs.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. 78/655,807 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_cL 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 Exhibit 9.
`
`67.
`
`Applicant is using the federal trademark registration symbol, ®, in connection
`
`with the KOSHER ZONECHEFS mark for food delivery services on its <kosherzonechefs.com>
`
`website. Print outs from Applicant’s <kosherzonechefs.com> website showing Applicant’s use
`
`of the federal registration symbol in connection with the KOSHER ZONECHEFS mark are
`
`attached at Exhibits 4-6 and §-_9_.
`
`#564046
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`68.
`
`Applicant does not own a United States federal trademark registration for the
`
`trademark KOSHER ZONECHEFS for food delivery services.
`
`FIRST GROUND FOR RELIEF
`
`§UNDER 15 U.S.C. § 1052§d)[
`
`69.
`
`Opposer incorporates by reference paragraphs 1 through 68 as if fully set forth
`
`herein.
`
`70.
`
`The ZONE Marks have been used continually by Opposer since a date prior to
`
`any date on which Applicant may rely.
`
`71.
`
`Applicant’s KOSHER ZONECHEFS mark is identical or confusingly similar to
`
`Opposer’s ZONE Marks in appearance and in commercial impression.
`
`72.
`
`The services of Applicant to be offered under its KOSHER ZONECHEFS mark
`
`are identical or related to Opposer’s goods and services under the ZONE Marks and to Dr. Sears
`
`himself.
`
`73.
`
`The use by Applicant of KOSHER 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 Applicant’s services are
`
`endorsed, sponsored, or in some way connected with Opposer.
`
`74.
`
`Use of KOSHER ZONECHEFS by Applicant is likely to cause confusion, cause
`
`mistake or to deceive the public into the belief that the services offered under KOSHER
`
`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).
`
`#564046
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`SECOND GROUNDS FOR RELIEF
`
`gMISUSE OF THE FEDERAL REGISTRATION SYMBOL}
`
`75.
`
`Opposer incorporates by reference paragraphs 1 through 74 as if fully set forth
`
`herein.
`
`76.
`
`Applicant is using the federal trademark registration symbol, ®, on its
`
`<zonechefs.com> and <kosherzonechefs.com> websites in connection with the KOSHER
`
`ZONECHEFS mark for food delivery services.
`
`77.
`
`Applicant does not own a United States trademark registration for the trademark
`
`KOSHER ZONECHEFS for food delivery services.
`
`78.
`
`Upon information and belief, Applicant is using the federal trademark registration
`
`symbol in connection with the KOSHER ZONECHEFS mark for food delivery services with the
`
`intention of deceiving the public or others in the trade into believing that the mark is registered.
`
`79.
`
`App1icant’s improper use of the federal trademark registration symbol in
`
`connection with the KOSHER ZONECHEFS mark for food delivery services when such mark
`
`has not been so registered constitutes fraud.
`
`#564046
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`12
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`WHEREFORE, the Opposer requests that this opposition be sustained and that
`
`Trademark Application Serial No. 78/655,807 filed on June 22, 2005 by Zone Chefs, LLC be
`
`rejected and its registration refused.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PH.D.
`
`j
`
`attorneys, ]
`
`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
`
`hereby
`grid: theU
`
`CIKIIFICATE OF D:AlL1l!:G
`this eormpo
`bclnxdeposfted
`Pomi Servizegeigrst-class mail In an
`..
`sinner for Tndemnrin.
`
`
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`#564046
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`Exhibit 1
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.
`
`KOSHER ZONECHEFS
`Mark:
`Serial No.:
`78/655,807
`Class:
`39
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`BARRY D. SEARS Ph.D.,
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`Opposer,
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`v.
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`ZONECHEFS, LLC,
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`Applicant.
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`DECLARATION OF BARRY D. SEARS PH.D.
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`1, Barry D. Sears. Ph.D., on oath hereby depose and state as follows:
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`1.
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`I am a scientist and author who has achieved considerable fame in
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`connection with the lifelong hormonal and insulin control program that I first created
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`about fifteen (15) years ago.
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`2.
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`My program uses food as a drug to help people control and balance their
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`hormonal and insulin levels to achieve maximum mental productivity and as a means to
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`improved health.
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`3.
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`I branded my writing, teaching and consulting on the benefits of an
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`insulin balanced hormonal control diet with the term “ZONE.”
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`4.
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`I adopted the term ZONE as my trademark to analogize the health benefits
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`of my products and services compliant with my hormonal control program for ordinary
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`dieters to that of the “flow” achieved by superior athletes during sports participation.
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`5.
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`Since creation of my hormonal control/insulin balanced program, I have
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`provided a wide array of health and nutrition products and services that are compliant
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`with this program under the trademark ZONE and composite trademarks all containing
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`ZONE as the dominant portion thereof, including, but not limited to, ZONE, ZONE
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`CUISINE, ZONE CAFE, ZONE SKIN CARE, ZONERX, ZONE LABS, ZONENET and
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`ZONE SHAKES.
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`6.
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`I have authored numerous ZONE branded books relating to using food as
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`a drug to control and balance hormonal and insulin levels, including The Zone, Mastering
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`the Zone, Zone Food Blocks, The Anti-Aging Zone, A Week in the Zone, The Soy Zone,
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`The Top One Hundred Zone Foods, The OmegaRx Zone and The Anti-Inflammatory
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`Zone.
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`list.
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`7.
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`Several of these books have appeared on The New York Times bestseller
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`8.
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`The Zone was number one on The New York Times bestseller list in 1996
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`and remained on that list for approximately twenty (20) weeks.
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`9.
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`More than five million hard cover copies of my ZONE branded books
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`have been sold in the United States alone.
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`10.
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`My works have been translated into twenty-two (22) languages and are
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`sold in at least forty (40) foreign countries.
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`11.
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`In addition to my ZONE branded books, myself and my ZONE branded
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`health and nutrition products and services are widely known from my numerous and
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`frequent live and taped appearances, including seminars, conferences, radio shows, and
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`network television interviews, throughout the country.
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`#564047
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`‘I
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`12.
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`In promoting my ZONE branded health and nutrition products and
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`services, I have appeared on nationally-broadcast television shows, including The Today
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`Show in 1996 and again in January 2005, 20/20 in 1999, Good Morning America on June
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`9 and June 15, 2000 and again in May 2002, Dateline in July 2002, CBS Evening News
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`on May 21, 2003, The Montel Williams Show on April 1, 2004 and Live With Regis and
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`Kelly on February 2, 2005.
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`13.
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`Additionally, each year since 1998, I have conducted a week long ZONE
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`branded seminar aboard a cruise ship, providing a series of presentations and
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`demonstrations on mastering the hormonal and insulin control program that I developed.
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`14.
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`I am well and favorably known through the United States and I have built
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`up valuable goodwill and reputation in my ZONE Marks.
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`15.
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`I am the owner of approximately seventy (70) plus trademarks and service
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`marks comprising or containing “ZONE” for a wide array of health and nutrition
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`products and services.
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`16.
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`I have promoted the health benefits of pharmaceutical grade fish oil for
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`numerous years and recommend such supplement as an essential part of my insulin and
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`hormonal control program.
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`#564047
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`I)
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`17.
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`I sell my own ZONE branded pharmaceutical grade fish oil supplements.
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`The declarant further declares that all statements made herein of his knowledge
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`are true, and that all statements made on information and belief are believed to be true;
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`and further declares that these statements were made with the knowledge that willful
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`false statements and the like so made are punishable by fine or imprisonment, or both,
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`under Section 1001 of Title 18 of the United States Code and that such willful false
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`statements mayjeopardize the Validity ofthis decl .
`V
`Decembe1z7(_‘_5, 2005
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`Barry D. Sears Ph.D.
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`#564047
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`4
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`4)
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`Exhibit 2
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`The Zone: An Empirical Study
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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
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`ABSTRACT
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`Introduction
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`Theoretical Frameworks
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`Zone Sport Research
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`Universalitv of the Sport Zone
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`T Summary
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`References
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`ABSTRACT
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`This paper examines the heightened states of consciousness during participation in sporttermed the zone
`on are described. The notion of a universal
`or flow. Theoretical frameworks and studies of the phenomen
`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 oftennis
`players‘ and elite athletes’ narratives of flow support flow4theory's posited structure of flow consisting of
`eight dimensions. No significant differences were found between tennis players and elite athletes on the
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`hrrn-//www.athleticinsightcorn/Vol1Iss3/Empirical Zone.htm
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`The Zone: An Empirical Study
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`. Experience Questionnaire (Privette, 1984). These analyses suggest that the zone or flow state is a
`universal phenomenon across sports, although intra—sport_ and inter-athlete differences are evident.
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`Introduction
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`19 I{ecent applied sport psychology literature is replete with references. to "the zone" (e.g., Clarkson,
`99, Goldberg, 1998). Denoted as the pinnacle of achievement for an athlete, the zone characterises a
`state in which an athlete performs to the best of his or her ability. It is a is a magical and
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`special place where performance is exceptional and consistent, automatic and flowing. An
`athlete is able to ignore all the pressures and let his or her body deliver the performance that has
`been learned so well. Competition 1S fun and exciting. (Murphy, 1996, p. 4)
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`While ‘there is consensus that the zone describes a most highly desirable and much sought state in
`sport participation, there is little agreement as to the origin of the term. Shainberg (1989) claims that its
`origm is unknown, whereas the legendary baseballer Ted Williams (Douillard, 1994) and the former
`Wimbledon Champion Arthur Ashe (Loehr, 1995) are both credited with coining the phrase "in the
`zone". Notwithstanding its uncertain origins, the zone is "_a fairly new development in the lexicon of
`sports culture" (Cooper, 1998, p.21) and a term used by athletes, researchers and practitioners alike.
`. As a term denoting an optimal or heightened state of consciousness, the zone can be likened to the
`diverse range of phenomena covered by the umbrella terms of ecstasy, transcendent or altered states of
`consciousness in sport participation. Such terms are variously denoted and include the concepts of
`"peaks", "perfect moments", "mindfulness", "peak experience" and "flow". In the sport psychology
`literature, the terms zone and flow are in fact used interchangeably and synonymously (Cooper, 1998;
`Heathcote, 1996).
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`Theoretical Frameworks for Understanding the.Zone
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`Explanations of the zone or flow state can be gleaned from two psychological theories, flow theory
`(Csikszentmihalyi, 1975, 1990) and reversal theory (Apter, 1982, 1989). In brief, flow theory denotes
`the zone as a rare and dynamic state characterised as the experience of self-rewarding and enjoyable '
`involvement. Flow theory states that while the zone can be experienced at varying levels, a
`phenomenological structure of eight dimensions describes the experience for individuals across
`occupations, demographic groups and cultures. These dimensions are listed by Csikszentmihalyi (1990)
`as: (a) clear goals and feedback; (b) balance between challenges and skills; (c) action and awareness
`merged; (cl) concentration on task; (e) sense of potential control; (f) loss of self-consciousness; (g)
`altered sense of time; and, (h) autotelic (self-rewarding) experience. These dimensions are deemed to
`constitute the conditions necessary for the occurrence and continuation of the zone.
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`Reversal theory posits an explanation of the zone in terms of metamotivational states (modes or
`mental states in which an individual's motives are structured, interpreted and organised within
`experience) and reversals (switches between modes). Specifically, individuals are thought to experience
`the zone as an optimal relaxing telic (from the Greek word "telos" meaning goal or end) or exciting
`paratelic ("para" being the Greek word for beside or alongside) metamotivational state. A range of
`personal and situational factors is conceptualised to influence. telic or paratelic zone states.
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`Zone Sport Research
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`Studies of the zone or "zone-like states" include those of Ravizza (1977, 1984), Loehr (1986),
`Garfield and Bennett (1984), Jackson (1992, 1993, 1995, 1996) and Young (1999a,- l_999b, 1999c, -
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`http://www.athleticinsightcom/Vol 1 Iss3/,Empirical_Zone.htm
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`1999d). These studies have investigated both the characteristics and dynamics of the zone or zone-like
`phenomena.
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`In one ofthe first studies to address the experiential dimensions of sport, Ravizza (1977)
`investigated 20 athletes’ "greatest moments", which he denoted as sport peak experiences. In findings
`paralleling those of Maslow's (1962) study of the generic peak experience, Ravizza (1977, 1984) found
`that the nature of the sport peak experience was: temporary and ofrelatively short duration; non-
`voluntary and not induced at will; and, unique and not necessarily associated with a successful
`performance outcome. He also found that the athletes’ mastering ofthe basic skills ofthe sport was a
`pre-condition for the occurrence of peak experiences. Characteristics of the sport peak experience
`included focusing on the present moment, effortless merging of action and awareness, loss ofpersonal
`ego, sense of control, clear feedback, and an intrinsic reward system. Athletes recalled these special
`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 sport participation. Twelve categories were identified to reflect the ideal
`internal climate for performing optimally. These categories were: physically relaxed; mentally calm; low
`anxiety; energised; optimistic; enjoyment; effortless; automatic; alert; mentally focused; self-confident;
`and, in control.
`Elite athletes in Garfield and Bennett'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 "peak performance feelings", were identified as being characteristic of these
`moments. In findings which paralleled those of Loehr (1986), the conditions conducive to optimal
`performance were the feelings ofbeing mentally alert, physically relaxed, confident and optimistic with
`a generally positive outlook, focused on the present, highly energised, extraordinary awareness, in
`control, and in the "cocoon" without fear or anxiety.-
`Applying a flow theory framework, Jackson (1992, 1993, 1995, 1996) investigated the nature and
`conditions of flow experiences for 16 former elite figure skaters and 28 elite athletes representing seven
`sports. Figure skaters and elite athletes endorsed all theoretical flow dimensions (listed above), with the
`exception of the dimension of loss of self-consciousness for figure skaters. Factors influencing flow
`states were identified and include