throbber
TT AB
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Rhynsburger, Jeanne T.
`1210 west Avenue J Suite 200
`Lancaster, CA 93534
`
`DEBORAH L. BENSON
`HINCKLEY, ALLEN & SNYDER LLP
`28 STATE STREET
`BOSTON, MA 02109
`
`\V|\\\\\\\|\\\\\\“\\\\\\\\\\\\"“\\“\\“\\\\“\
`
`02.09-20C 6
`nQwMM®wMMwWMm””
`
`‘.7;
`
`Mailed:
`
`January 20, 2006
`
`Cancellation No. 92045364
`Reg. No. 2872504
`
`BARRY D. SEARS Ph.D.
`V.
`
`RhYn5bur9erv Jeanne T-
`
`Tamika W'hi’rsey, Legal Assisfcmf:
`
`A petition, a copy of which is attached, has been filed.to cancel
`above-identified registration.
`
`the
`
`Proceedings will be conducted in accordance with the Trademark Rules of
`Practice.
`
`(See Trademark
`ANSWER IS DUE FORTY DAYS after the mailing date hereof.
`Rule 2.196 for expiration date falling on Saturday, Sunday or a
`holiday).
`
`Proceedings will be conducted in accordance with the Trademark Rules of
`Practice, set forth in Title 37, part 2, of the Code of Federal Regulations.
`The parties are reminded of the recent amendments to the Trademark Rules that
`affect the rules of practice before the TTAB.
`See Rules of Practice for
`Trademark—Related Filings Under the Madrid Protocol Implementation Act, 68
`Fed. R. 55,748 (September 26, 2003)
`(effective November 2, 2003);
`Reorganization of Correspondence and Other Provisions, 68 Fed. Reg. 48,286
`(August 13, 2003)
`(effective September 12, 2003). Notices concerning the
`rules changes, as well as the Trademark Trial and Appeal Board Manual of
`Procedure (TBMP), are available at www.uspto.gov/web/offices/dcom/ttab/.
`
`The parties are particularly referred to Trademark Rule 2.126
`pertaining to the form of submissions.
`Paper submissions,
`including
`but not limited to exhibits and depositions, not filed in accordance
`with Trademark Rule 2.126 may not be given consideration or entered
`into the case file.
`
`

`
`Discovery and testimony periods are set as follows:
`
`Discovery period to open:
`
`February 09, 2006
`
`Discovery period to close:
`
`August 08, 2006
`
`30-day testimony period for party
`in position of plaintiff to close:
`
`November 06, 2006
`
`30—day testimony period for party
`in position of defendant to close:
`
`January 05, 2007
`
`15-day rebuttal testimony period
`for plaintiff to close:
`
`February 19, 2007
`
`A party must serve on the adverse party a copy of the transcript of any
`testimony taken during the party's testimony period,
`together with
`copies of documentary exhibits, within 30 days after completion of the
`taking of such testimony.
`See Trademark Rule 2.125.
`
`Briefs shall be filed in accordance with Trademark Rule 2.l28(a) and
`(b).
`An oral hearing will be set only upon request filed as provided
`by Trademark Rule 2.129.
`
`The Board allows parties to utilize telephone conferences to
`NOTE:
`discuss or resolve many interlocutory matters that arise in inter
`partes cases.
`See the Official Gazette notice titled “Permanent
`Expansion of Telephone Conferencing on Interlocutory Matters in Inter
`Partes Cases Before the Trademark Trial and Appeal Board,” 1235 TMOG 68
`(June 20, 2000).
`The notice is available at http://www.uspto.gov.
`Interlocutory matters which the Board agrees to discuss or decide by
`phone conference may be decided adversely to any party which fails to
`participate.
`
`If the parties to this proceeding are also parties to other Board
`proceedings involving related marks or, during the pendency of this
`proceeding,
`they become parties to such proceedings,
`they should notify
`the Board immediately,
`so that the Board can consider consolidation of
`proceedings.
`
`New Developments at the Trademark Trial and Appeal Board
`
`TTAB forms for electronic filing of extensions of time to oppose, notices of
`opposition, and inter partes filings are now available at
`http;//estta.uspto.gov.
`Images of TTAB proceeding files can be viewed using
`TTABVue at http://ttabvue.uspto.gov.
`
`

`
`Hinckeyflensnydenu»
`ATTORNEYS AT LAW
`_
`28 State Street
`
`Amy B. Spagnole. 1354-
`aSPagn01e@1'aS1aW- 00'"
`Direct (61 7) 3 78-4204
`
`Boston, MA 02109-1775
`TEL: 617.345.9000
`FAX: 617.345.9020
`www.haslaw.com
`
` -A
`
`llllllllllllllllllllllllllllllllllllllllllllllllll
`
`01-10-2006
`us Fun: 5 ‘rmomm mu mm on ,1,
`
`-
`
`January 6, 2006
`
`' VIA FIRST CLASS MAIL
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Re:
`
`Petition for Cancellation
`of United States Trademark
`
`Reg. No.: 2,872,504 -~ 7?’, 0 <33 9 73
`Registrant: Jeanne T. Rhynsburger
`I
`and Dirk R. Rhynsburger
`Mark: THE ULTIMATE ZONE COACH
`
`Classes: 9, 16
`
`Dear Madam:
`
`The following documents are submitted in connection with U.S. Reg. 2,872,504, issued to
`Jeanne T. Rhynsburger and Dirk R. Rhynsburger, for the mark THE ULTIMATE ZONE
`COACH in International Classes 9, 16 on the Principal Register:
`
`1. Petition for Cancellation With Exhibits 1-6;
`
`. 2. Petition fee, $600.00, by check No. 68553 for 2 classes;
`
`3. Certificate of Mailing dated January 6, 2006; and
`
`4. Authorization to charge Deposit Account.
`
`The Commissioner is authorized to charge any additional needed fees and to credit any
`overpayrnents to Account No. 50-0485, Hinckley Allen & Snyder LLP.
`
`
`
`Enc osures
`
`CCI
`
`566074
`
`Deborah L. Benson (w/o Encl.)
`
`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
`
`

`
`Hinckleymensnyderup
`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.
`aspagnale(@tasIa w.com
`Direct (61 7) 378-4204
`
` ———_\
`
`lllllllIlllllllllllllllllllHlllllfllllllllfllllll
`
`01-10-2006
`U.S Patent 5 TMOFCIYM Mal Rm Dr. an
`
`"
`
`January 6, 2006
`
`6 VIA FIRST CLASS MAIL
`
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`,3. Alexandria, VA 22313-1451
`
`- Re:
`
`Petition for Cancellation
`of United States Trademark
`
`Reg. No.: 2,872,504 -~ 77‘ 0 73 7 70
`Registrant: Jeanne T. Rhynsburger
`I
`and Dirk R. Rhynsburger
`Mark: THE ULTIMATE ZONE COACH
`
`Classes: 9, 16
`
`Dear Madam:
`
`The following; documents are submitted in connection with U.S. Reg. 2,872,504, issued to
`Jeanne T. Rhynsburger and Dirk R. Rhynsburger, for the mark THE ULTIMATE ZONE
`COACH in International Classes 9, 16 on the Principal Register:
`
`1. Pe1:ition for Cancellation With Exhibits 1-6;
`
`. 2. Petition fee, $600.00, by check No. 68553 for 2 classes;
`
`3. Certificate of Mailing dated January 6, 2006; 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.
`
` y, Wé
`
`. Spagnole
`
`Enc osures
`
`(303
`
`566074
`
`Deborah L. Benson (w/o Encl.)
`
`1500 Fleet Center. Providence, RI 02903-2393 TEL: 401.274.2000 FAX: 401.277.9600
`43 North Main Street. Concord, NH 03301-4934 TEL: 603.225.4334 FAX: 603.224.8350
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TTAB
`
`BARRY D. SEARS Ph.D.,
`_
`_
`Petltlon er!
`
`_ v.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Respondents.
`____??_._._)
`
`JEANNE T. RHYNSBURGER and
`DIRK R. RHYNSBURGER
`
`
`
`HlllllIllllllllllllllIlllllllllllllllllllllllllll
`
`01-10-2006
`u 5, Damn: I motcrrm ml Real 0!. M1
`
`Cancellation No.
`
`Mark:
`
`Reg. No.:
`Class:
`
`THE ULTIMATE ZONE
`COACH
`2,872,504
`9, 16
`
`PETITION FOR CANCELLATION
`
`Barry D. Sears, Ph.D., a United States citizen, with an address of 222 Rosewood Drive,
`
`Suite 500, Danvers, Massachusetts 01923 (hereinafter “Petitioner” or “Dr. Sears”) believes that
`
`he has been and will continue to be damaged by United States Trademark Registration No.
`
`2,872,504 for the mark THE ULTIMATE ZONE COACH, for “printed material, namely
`
`educational and instructional manuals in the field of nutritional information,” in International
`
`Class 16 and “sound recording, namely prerecorded audio cassettes and CD5 featuring nutritional
`
`information,” in International Class 9,
`
`issued on the Principal Register on August 10, 2004 to
`
`Dirk R. Rliynslburger and Jearme T. Rhynsburger, each a United States citizen, with an address of
`
`1210 West Avenue J, Suite 200, Lancaster, California 93534 (hereinafter “Respondents”), and
`
`hereby petitions to cancel such registration pursuant to § 14(3) of the Lanham Trademark Act of
`
`1946, 15 USC § 1064(3). As grounds for this Petition, Dr. Sears alleges as follows:
`
`enmmsa 00000045 8372504
`
`01 F0
`
`1
`
`600.00 09
`
`#564684. I
`
`

`
`FACTS
`
`1.
`
`Petitioner is the owner of the trademark ZONE and other marks incorporating
`
`'i ZONE for health and nutrition products and services.
`
`2.
`
`Since 1995, Petitioner has used the trademark ZONE in connection with print and
`
`F electronic publications and educational and counseling services. Such use has been ongoing and
`
`continuous.
`
`3.
`
`Petitioner, 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 fifieen (15) years ago. _S_e§ Declaration of Barry D. Sears (“Sears Decl.”) 1| 1, attached
`
`hereto at Exhib_it_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. 1; 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.” I_d. at 1| 3.
`
`6.
`
`Dr. Sears adopted the term ZONE as his trademark to analogize the health
`
`benefits of his products and services compliant with his hormonal control program for ordinary
`
`dieters to that of the “flow” achieved by superior athletes during sports participation. Lt; 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.
`
`#564684. I
`
`
`
`2
`
`

`
`9.
`
`Dr. Sears is well known as the source of ZONE branded products and services.
`
`10.
`
`Dr. Sears has authored numerous ZONE branded books which are premised upon
`
`using food as a drug to control and balance honnonal 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
`
`9 Dec1.at1[5.
`
`11.
`
`Several of these books have appeared on The New York Times bestseller list. 1;
`
`at 1] 6.
`
`12.
`
`Dr. Sears’ The Zone was number one on The New York Times bestseller list in
`
`1996 and remained on that list for approximately twenty (20) weeks. Q at 1] 7.
`
`13.
`
`More than £13 gijgr; hard cover copies of Dr. Sears’ ZONE branded books have
`
`been sold in the United States alone.
`
`l_d. at 1! 8.
`
`14.
`
`Dr. Sears’ works have been translated into E languages and are sold in at least gig
`
`foreign countries. Ll. at 1] 9.
`
`15.
`
`In addition to his ZONE branded books, Dr. Sears and his ZONE branded health
`
`and nutrition p:roducts 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[ 10.
`
`16.
`
`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
`
`#564684.l
`
`
`
`3
`
`

`
`May 21, 2003, The Montel Williams Show on April 1, 2004 and Live With Regis and Kelly on
`
`February 2, 21005. E, at 1] 11.
`
`A
`
`17.
`
`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.
`
`I_d, at 1] 12.
`
`18.
`
`Dr. Sears is well and favorably known throughout the United States and has built
`
`up valuable goodwill and reputation in his trademark ZONE. L; at 1[ 13.
`
`1.9.
`
`The widespread recognition, fame and goodwill associated with ZONE for
`
`products and services in the health and nutrition marketplace is a result of the Petitioner’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
`
`Petitioner’s ZONE branded products and services.
`
`20.
`
`Petitioner 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 1[ 14.
`
`21.
`
`By way of example, Petitioner owns the following United States Trademark
`
`Registration:
`
`Mark:
`
`ZONE
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`Date of First Use
`
`In Commerce:
`Goods:
`
`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.
`
`1564684.]
`
`
`
`4
`
`

`
`22.
`
`In accordance with Sections 7(b), 22 and 33(a) of the Lanham Trademark Act,
`
`Petitioner’s above-cited registration constitutes primafacie evidence of the validity of the
`
`registered mark and of the registration thereof, Petitioner’s ownership of the mark shown in said
`
`registration, and Petitioner’s exclusive right to use the mark in commerce in connection with the
`
`goods named therein, without condition or limitation.
`
`‘.23.
`
`Said registration constitutes notice to Respondents of Petitioner’s claim of
`
`ownership of the mark shown within such registration.
`
`24.
`
`The Respondents have registered THE ULTIMATE ZONE COACH as a
`
`trademark for “sound recordings, namely pre-recorded audio cassettes and CD5 featuring
`
`nutritional information,” in International Class 9 and “printed material, namely educational and
`
`instructional manuals in the field of nutritional information,” in International Class 16.
`
`25.
`
`The application for registration of Respondents’ THE ULTIMATE ZONE
`
`COACH mark: was filed on November 14, 2001 under Section 1(a) of the Trademark Act,
`
`claiming a date of first use anywhere and a date of first use in commerce of November 9, 2001,
`
`long afier Petitioner coined and began using his trademark ZONE in 1995.
`
`26.
`
`The application for registration of Respondents’ THE ULTIMATE ZONE
`
`COACH mark was filed on November 14, 2001 claiming a date of first use anywhere and a date
`
`of first use in commerce of November 9, 2001, long afier Petitioner’s date of first use of May
`
`1995 for ZONE (Reg. No. 2,689,749).
`
`27'.
`
`The term ZONE comprises the dominant portion of Respondents’ THE
`
`ULTIMATE ZONE COACH mark.
`
`#5646841
`
`5
`
`
`
`

`
`218.
`
`The term ZONE in the Respondents’ mark THE ULTIMATE ZONE COACH has
`
`the identical meaning as the term ZONE in Petitioner’s registered marks and common law
`
`marks.
`
`29.
`
`The term ZONE in THE ULTIMATE ZONE COACH refers to and indicates
`
`compliance with Dr. Sears and his criteria for an insulin and hormonal balanced diet. Print outs
`
`from Respond ents’ website are attached at Exhibit 3.
`
`30.
`
`Respondents’ printed materials and sound recordings are advertised as all about
`
`“how your body responds to various foods”, “achieving better mental focus” and “balancing
`
`blood sugar.” Print outs from Respondents’ website are attached at Exhibit 4.
`
`31.
`
`The Respondents’ goods, as set forth in Reg. No. 2,872,504, and Petitioner’s
`
`ZONE branded health and nutrition goods and services are highly related, if not identical, goods.
`
`32.
`
`The goods set forth in Respondents’ Reg. No. 2,872,504 are “printed materials,
`
`namely educational and instructional manuals in the field of nutritional information" and “sound
`
`recordings, namely prerecorded audio cassettes and CDs featuring nutritional information.”
`
`33.
`
`The goods set forth in Petitioner’s Reg. No. 2,689,749 for ZONE are “books in
`
`the field of diet and nutrition,” in Intemational Class 16.
`
`34.
`
`Respondents’ printed materials and sound recordings featuring nutritional
`
`information are highly related, if not identical, to Petitioner’s books in the field of diet and
`
`nutrition.
`
`35.
`
`Respondents’ Reg. No. 2,872,504 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.
`
`36.
`
`Respondents’ goods are presumed to travel through all charmels of trade and to be
`
`directed towards all relevant consumers.
`
`#564684.1
`
`5
`
`

`
`37.
`
`There are no limits on the channels of trade or consumers for Petitioner’s goods as
`
`described in Petitioner’s Reg. No. 2,689,749.
`
`38.
`
`The Respondents’ THE ULTIMATE ZONE COACH goods and the Petitioner’s
`
`ZONE branded goods and services will be sold or offered through the same channels of trade.
`
`39.
`
`The Respondents’ THE ULTIMATE ZONE COACH goods and the Petitioner’s
`
`ZONE branded goods and services will be sold to the same customers.
`
`40.
`
`Consumers are likely to believe that Respondents’ goods, similarly marked and
`
`sold in the same channels of trade as Petitioner’s ZONE branded goods and services, come fi'om
`
`or are sponsored or endorsed by the same source.
`
`41.
`
`Consumers are likely to expect that Respondents’ goods, similarly marked and
`
`creating an identical commercial impression -- as a result of the use of the term ZONE in the
`
`context of printed publications and sound recordings designed to assist dieters with hormonal
`
`control and insulin balance --, are of the same quality as Petitioner’s ZONE branded goods and
`
`services.
`
`42.
`
`Upon information and belief, Respondents adopted and applied to register the
`
`mark THE ULTIMATE ZONE COACH with actual knowledge of Petitioner’s prior rights in and
`
`to the trademark ZONE for health and nutrition products and services and with a bad faith intent
`
`to trade off the good will of Petitioner’s trademark ZONE.
`
`43.
`
`Upon information and belief, Respondents willfully copied Dr. Sears’ trademark
`
`ZONE in choosing THE ULTIMATE ZONE COACH in a deliberate attempt to associate its
`
`goods with Petitioner, Petitioner’s trademark ZONE and the good will therein.
`
`44.
`
`Respondent maintains or has maintained a website at the Internet address
`
`<leamthe2:one.c:om>.
`
`#564684. I
`
`7
`
`

`
`45.
`
`Respondent advertises its “Mastering the ZONE” instructor certification course
`
`on its <1eamUhezone.com> website. Print outs from Respondent’s <1eamthezone.com> website
`
`are attached a.t Exhibit 5.
`
`46.
`
`Dr. Sears is the author of a book entitled Mastering the Zone. Scars Decl. at 1] 1]
`
`5-6. A copy of the book jacket for Dr. Sears’ Mastering the Zone book is attached at Exhibit 6.
`
`47.
`
`Upon information and belief, Respondent has ceased using THE ULTIMATE
`
`ZONE COACH as a trademark in connection with the goods listed in Reg. No. 2,872,504.
`
`48.
`
`Upon information and belief, Respondent has no intention to resume use of the
`
`mark THE ULTIMATE ZONE COACH.
`
`FIRST GROUND FOR RELIEF
`
`[UNDER 15 U.S.C. § 1052§d}[
`
`49.
`
`Petitioner incorporates by reference paragraphs 1 through 48 as if fully set forth
`
`herein.
`
`50.
`
`The trademark ZONE has been used continually by Petitioner since a date prior to
`
`any date on which Respondents may rely.
`
`5l.
`
`Respondents’ THE ULTIMATE ZONE COACH mark is identical or confusingly
`
`similar to Petitioner’s trademark ZONE in appearance and in commercial impression.
`
`52!.
`
`The goods Respondents offer under the THE ULTIMATE ZONE COACH mark
`
`are identical or related to Petitioner’s goods and services sold under the trademark ZONE and to
`
`Dr. Sears himself.
`
`53.
`
`The use by Respondents of THE ULTIMATE ZONE COACH for the goods listed
`
`in the subject registration is likely to create the erroneous impression that Respondents’ goods
`
`originate with, are sponsored or promoted by, come from, or are otherwise associated with
`
`#5646841
`
`3
`
`

`
`Petitioner or Petitioner’s goods and services provided under the trademark ZONE or that
`
`Respondents’ goods are endorsed, sponsored, or in some way connected with Petitioner.
`
`54.
`
`Use of THE ULTIMATE ZONE COACH by Respondents is likely to cause
`
`confusion, cause mistake or to deceive the public into the belief that the goods offered under
`
`THE ULTIMATE ZONE COACH come fiom or are otherwise authorized or sponsored by
`
`Petitioner in violation of Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d).
`
`SECOND GROUND FOR RELIEF
`
`QABANDONMENTI
`
`55.
`
`Petitioner incorporates by reference paragraphs 1 through 54 as if fully set forth
`
`herein.
`
`56.
`
`Upon information and belief, the Respondent has abandoned the mark which is
`
`the subject of Registration No. 2,872,504, by discontinuing use of said mark with no intent to
`
`resume said use.
`
`57.
`
`So long as Registration No. 2,872,504 is maintained, Petitioner will be unable to
`
`effectively enforce its rights and interests in its trademark ZONE.
`
`#S64684.l
`
`9
`
`

`
`WHEREFORE, the Petitioner requests that this Petition for Cancellation be sustained and
`
`that Trademark Registration No. 2,872,504 issued to Jearme T. and Dirk R. Rhynsburger on
`
`August 10, 2004 be cancelled.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PH.D.
`
`By his attorneys,
`
`%e6orah 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: January _(g_, 2006
`
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`#564684. 1
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`1 0
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`

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`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`)
`
`) )
`
`) )
`
`BARRY D. SEARS Ph.D.,
`
`Petitioner,
`
`v.
`
`JEANNE T. RHYNSBURGER and
`DIRK R. RHYNSBURGER
`
`)
`)
`)
`)
`)
`)
`Respondents.
`éj-:j
`
`Cancellation No.
`
`Mark: THE ULTIMATE ZONE
`COACH
`Reg. No.: 2,872,504
`Classes: 9, 16
`
`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 maximtun mental productivity and as a means to
`
`improved health.
`
`3.
`
`i
`
`I branded my writing, teaching and consulting on the benefits of an
`
`insulin balzmced 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.
`
`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.
`
`6.
`
`Several of these books have appeared on The New York Times bestseller
`
`7.
`
`The Zone was number one on The New York Times bestseller list in 1996
`
`and remained on that list for approximately twenty (20) weeks.
`
`8.
`
`More than five million hard cover copies of my ZONE branded books
`
`have been. sold in the United States alone.
`
`9.
`
`My works have been translated into twenty-two (22) languages and are
`
`sold in at least forty (40) foreign countries.
`
`10.
`
`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.
`
`1 1.
`
`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.
`
`#564061
`
`2
`
`
`
`

`
`12.
`
`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.
`
`13.
`
`I am well and favorably known through the United States and I have built
`
`up valuable goodwill and reputation in my ZONE Marks.
`
`14.
`
`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.
`
`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.mayjeopardizethe validity ofthisdecla '.
`Z
`
`:.
`
`Barry D. Sears Ph.D.
`
`December $5 2005
`
`
`
`#564061
`
`

`
`EXHIBIT 2
`
`

`
`The Zone: Anlixnpirical‘Study
`
`Page 1" of '3
`
`
`
`
`The Zone: Evidence of a Universal Phenomenon for- Athletes
`Across Sports
`JanetA Young and Michelle D Pqin
`-Monash University, Melbourne, Australia
`
` n
`
`duct"
`
`
`
`
`
`e
`
`et' a
`
`a
`
`e
`
`ks
`
`one
`
`‘
`
`:1 ch
`
`niversa '
`
`0 h
`
`e
`
`ABSTRACT
`
`This aper examines
`the heightened states of consciousness during participation in sporttermed the zone
`or flo . Theoretical frameworks and studies ofthe phenomenon are described. The notion of a universal
`zone '
`sport is explored with a review of Young's (l999a) comparative analysis of flow experiences of
`profes ional tennis players with Jackson's (1993, 1996) elite athletes. Qualitative analyses of tennis
`players’ and elite athletes" narratives offlow support flow_theory‘s posited structure of flow consisting of
`eight d ‘ ensions. No significant differences were found between tennis players and elite athletes on the
`
`

`
`_
`universal phenomenon acr
`
`(Privette, 1984). These anal
`yses suggest that the zone or flow state is a
`oss sports, although intra-sport and inter-athlete differences are evident.
`Introduction
`
`"the zone" (e.g., Clarkson,
`etc, the zone characterises a
`
`‘sportparticipation. Such terms are
`"p aks", "perfect moments", "mindfuln
`ess", "peak experience" and "flow". In the sport psychology
`.l1t rature, the terms zone and flow are in fact used interchangeably
`thcote, 1 996).
`andrsynonymously (Cooper, 1998;
`
`concepts of
`
`(Csilkszentmihalyi, 1975, 1990) andreversal theory (Apter, 1982, 1989). Inbrief flowtheory denotes
`the inc as a rare anddyn
`'
`'
`'
`'
`'
`invo vement. Flow theory states that whi
`
`consciousness; (g)
`' ensions are deemed to
`
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`
`

`
`‘ The Zone: Empirical Study-
`
` Percenta e* of Tennis Pla e s a d
`iscellaneous Cate o
`ite
`' Each Dimension and Pe enta
`s W’
`e f All Raw Data
`
`
`emes Re resented
`
`Flow Dimension
`
`I
`
`-
`
` 5. Loss_self-consciousness I
`
`
`
`I
`I1. Challenge-skill balance
`I2. Action-awar_eness m rgingI
`I3 Clear gmls an
`
`6. Paradox‘ofcontrol I
`
`I7_,‘Transfom:.ation oftime
`I8. Autotelic experience '
`
`I9. Miscellaneous I
`
`
`
`
`
`

`
`The z'¢ne{An Erhpiriéal Study
`
`
`
`
`
`I
`IC1ear.innerprocess
`I
`In-.1: all to§eT1m:
`
`I
`IAwarenes.s ofpower
`
`IClear focus
`I
`'
`
`
`
`IStrong sem::E
`____.______.________________.
`
`
`
`
`
`
`
`
`I'1‘H’1“\'//\xru_xr a+k‘ln+.'-.'.. -3 ..1_‘L - -
`
`

`
`The Zone: An Empirical Study.
`
`Page..6 of 8
`
`- 4.18-
`
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`
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`Absorption
`F
`Intention I 4.86
`W
`ersonal responsibility I 4.21
`
`Overwhewlmed other senses, thoughtsI
`4.29
`"I13DOmU)
`"clicked" | 4.50
`“ll
`Personal understanding, expression I 3.26
`ctions, «thoughts spontaneous
`3.70
`Event was practiced
`4.46
`5
`-1.
`6.57
`C Si
`
`.
`4.93
`I
`I
`Fulfillment
`Intrinsic reward I 4.57
`H
`ILOSS ofself
`' I 0-93
`Ispmtual I -0459
`1"‘
`oss oftime and space
`.I 3.46
`-
`.
`-13Ni
`'
`=
`°
`.
`3.86
`H
`-2-57 £
`4.86
`4.04
`1.49
`5.00‘ E
`
`
`*
`E
`'
`
`
`
`q~l,__
`
`
`
`
`
`
`
`otes.
`
`.Values of 3.5 or more indicate endorsement.
`'
`. *Significa.nt at an alpha level of .05 divided among 27 comparisons (Bonferroni correction for
`Tiultipletests).
`'
`‘
`With no significant differences between tennis players and elite athletes fi'om other sports on the
`lixperience Questionnaire (Privette, 1984) items overall and the majority ofindividual items, and strong
`endorsement from each group ofathletes for the key theoretical characteristics offlow (clear irmer
`paocess and focus, fulfilment, intention, fim, high performance, and intrinsic reward), Young (1999a)
`sl ggested that tennis players and elite athletes from other sports experience flow in qualitatively similar
`anners. Notwithstanding this notion of a common flo'w experience, Young proposed that the finding of
`s gnificant differences between tennis players and elite athletes on approximately one quarter of27
`i ems contained in the Experience Questionnaire is evidence ofindividual differences for athletes across
`s orts in the phenomenology of flow. Further, it was noted that the fact that many of the items ofthe
`inventory had to be discarded due to inadequate Cronb
`ach apha coefficient values was indicative that
`tennis players as a group display variation in the experience of flow.
`
`I
`
`4 Summary
`
`

`
`References
`
`e ex
`
`'ence motivation: Th
`
`‘co
`
`of
`
`c olo 'cal re ers
`Apter, M. J’. (1982).
`.
`Academic Press.
`Apter, M. J. (1989). Reversal theory; Motivation, emotionand personality. London: Routedge.
`Clarkson, M. (1999). Qompetifive me. Champaign, IL: Human Kinetics.
`Cooper, A. (1998).
`la '
`inth
`one:Ex lo"
`th s in'tual dimensions ofs 0 .Boston:
`hambhala.
`.
`‘
`. Csikzentmihalyi, M. (1975). Play and intrinsic rewards. Journal of umanistic
`
`London:
`
`cholo
`
`5 41-
`
`I
`
`Csikzentmihalyi, M. (1990). Flow: lhe psychology ofoptimal experience. New York: Harper &
`we.
`.
`'
`Douillard, J. (1994-). Body, mind g1_r_1d sport. New York: Three Rivers Press.
`
`
` Heathcote, F. (1996). Beak performance: Zen and the sporting zone. Dublin, Ireland: Wolfhound.
`
`Jackson, S. A. (1992). Athletes inflow: A qualitativeinvestigation offlow_statcs inelitefigure
`ska ers. Journal QfApplied Sport Psychology, 4(2), 161-180. V
`
`
`
`

`
`The Zone: An Empirical ‘Study a
`
`v Loehr, J. E. (1986). Mental toughness training for sports:.Ach1'eving athleticexcellence. New-York:
`Plume.
`-
`Loehr, J. E. (1995, July). Six keys to getting and stayingin the zone. Tennis, p. 36.
`Maslow, A. H. (1962). Ioflard a psychology ofbem’g. Princeton, NJ: VanNostrand.
`Murphy, S. (1996). Ihe achieyement zone. New York: Berkley.
`
`Ravizza, K (1977) A SL1bj6Ct1V6 study ofthe athletes greatestmomentin sport InP;o_c§_efiimg_s__QI
`
`rLearrnn
`
`d
`
`ort schlo S
`
`'
`
`399-404) Toronto (‘
`
`
`
`Shainberg, L. (1989). Finding the zone.' PP. 34-36, 38-39
`Yeagle, E., Privette, G., & Dunham, . (1989).
`'
`xperience. Psychological Reports, 65, 523-530.
`Young, J.A. (1995a). Professional tennis players in flow: Flowtheogg and reversal theogg
`rs ective .Unpublis
`_
`'
`.
`'
`‘
`.
`
`
`
` ‘- 5.‘
`
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`fa? I if -‘
`
`__..__.....__..
`
`We look forward toyour comments andfeedback. Simply e-mail AthleticIns’ ht
`
`_
`
`'
`
`Mental Ijealth Net Award Winner
`Copyright 0 1999 Athletic Insight. Inc.
`ISSN_ 1535-0431
`
`

`
`EXHIBIT 3
`
`4m__%
`
`

`
`Ultimate Zone Coach
`
`Page 1 0f2
`
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