Hinckeyfirusnydemp
`ATTORNEYS AT LAW
`28 State Street
`
`Amy 3- Spagnole. 1954-
`aSPl1g"0le@haSlaW-00m
`Direct (61 7) 3 73-4204
`
`Boston, MA 02109-1775
`TEL: 617.345.9000
`FAX: 617.345.9020
`.11
`.
`WW “"8"” °°'"
`
`mrmumumrmlmmuuummmmuu
`
`01-03-2006
`US. =atent S. TMO.'c/TM Mall Rep: Dr. #11
`
`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:
`
`Petition for Cancellation
`
`of United states Trademark
`Reg. No.: 2,885,125
`Registrant: ZoneChefs LLC
`Mark: ZONE CHEF
`
`Classes: 29, 30, 39
`
`Dear Madam:
`
`The following documents are submitted in connection with U.S. Reg. 2,885,125, issued to
`ZoneChefs LLC, for the mark ZONE CHEF in International Classes 29, 30,‘ 39 on the Principal
`Register:
`
`1. Petition for Cancellation With Exhibits 1-9;
`
`2. Petition fee, $900.00, by check No. 68554 for 3 classes;
`
`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.
`
` Am
`
`Enclosures
`
`cc:
`
`Deborah L. Benson (w/o Encl.)
`
`565050
`
`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
`
`

`
`TTAB
`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`BARRY D_ SEARS Ph_D_’
`
`Petitioner,
`
`V-
`
`ZONECHEFS, LLC,
`
`)
`
`)
`
`)
`)
`)
`)
`)
`)
`
`)
`)
`Respondent.
`
`)
`
`I||||l|||||||||H||||||l|||||||||llll|||||||||l|||
`
`01'03'2°°6
`U5 =;(gnV_5.TMOf:/TM ManRcpzDz.¢:11
`
`Cancellation No.
`
`Mark:
`
`Serial No.:
`Classes:
`
`ZONECHEF
`
`2,885,125
`29, 30, 39
`
`W /77 277
`'
`3
`
`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. 2,885,125 for the mark ZONECHEF for “prepared entrees, side dishes
`
`and meals consisting of primarily meat, poultry, or vegetables,” in International Class 29,
`
`“prepared entrees, side dishes and meals consisting primarily of rice and pasta, baked
`
`goods consisting of cakes, cookies and muffins,” in International Class 30 and “food
`
`delivery services,” in International Class 39, issued on the Principal Register on
`
`September 14, 2004 to Zone Chefs, LLC, a New York limited liability company with an
`
`address of 8608 Foster Avenue, Brooklyn, New York 11236 (hereinafter “Respondent”),
`
`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:
`
`01/05/2006 Hpllllill
`
`00000097 2635135
`
`01 FC:6401
`
`990-90 99
`
`

`
`FACTS
`
`1.
`
`Petitioner is the owner of the trademark ZONE and other marks
`
`incorporating ZONE for health and nutrition products and services.
`
`2.
`
`Since 1995, Petitioner 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 connection with a wide variety of branded health and nutrition
`
`products and services, including print and electronic publications, educational and
`
`counseling services, meal delivery services, prepared foods, vitamins and supplements,
`
`meal replacements bars and drinks, skin care products and restaurant and cafe services.
`
`Such use has been ongoing and continuous.
`
`3.
`
`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 fifteen (15) years ago. fig Declaration of Barry D. Sears
`
`(“Sears Decl.”) ll 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.” I_cL 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
`
`#564058
`
`2
`
`

`
`ordinary dieters to that of the “flow” achieved by superior athletes during sports
`
`participation. I_d, 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 program under the trademark ZONE and composite trademarks all
`
`containing ZONE as the dominant portion thereof, including, but not limited to, ZONE,
`
`ZONE CUISINE, ZONE CAFE, ZONE SKIN CARE, ZONERX, ZONE LABS,
`
`ZONENET and ZONE SHAKES (the “ZONE Marks”). Li. at 11 5.
`
`10.
`
`Dr. Sears is well known as the source of ZONE branded products and
`
`services.
`
`11.
`
`Dr. Sears has authored numerous ZONE branded books which are
`
`premised upon using food as a drug to control and balance hormonal and insulin levels,
`
`including The Zone, Mastering the Zone, Zone Food Blocks, The Anti-Aging Zone, A
`
`Week in the Zone, The Soy Zone, The Top One Hundred Zone Foods, The 0megaRx Zone
`
`and The Anti-Inflammatory Zone. Sears Decl. at 11 6.
`
`12.
`
`Several of these books have appeared on The New York Times bestseller
`
`list. 191, at 1] 7.
`
`#564058
`
`3
`
`

`
`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. Li. at 1] 8.
`
`14.
`
`More than £135 million hard cover copies of Dr. Sears’ ZONE branded
`
`books have been sold in the United States alone.
`
`I_c_l_. at 119.
`
`15.
`
`Dr. Sears’ works have been translated into Q languages and are sold in at
`
`least Q foreign countries.
`
`ld_. 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.at1l 11.
`
`17.
`
`In promoting his ZONE branded health and nutrition products and
`
`services, Dr. Sears has appeared on nationally-broadcast television shows, including The
`
`Today Show in 1996 and again in January 2005, 20/20 in 1999, Good Morning America
`
`on June 9, 2000, June 15, 2000 and again in May 2002, Dateline in July 2002, CBS
`
`Evening News on May 21, 2003, The Montel Williams Show on April 1, 2004 and Live
`
`With Regis and Kelly on February 2, 2005.
`
`I_d, at 1] 12.
`
`18.
`
`Additionally, each year since 1998, Dr. Sears has conducted a week long
`
`ZONE branded seminar aboard a cruise ship, providing a series of presentations and
`
`demonstrations on mastering his hormonal and insulin control program. 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. Li. 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 Petitioner’s
`
`#564058
`
`4
`
`

`
`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.
`
`21.
`
`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.
`
`lgl_. at 1] 15.
`
`22.
`
`By way of example, Petitioner owns the following United States
`
`Trademark Registrations:
`
`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.
`
`Mark:
`
`ZONERX
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`Mark:
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`2,929,836
`March 1, 2005
`September 17, 2003
`April 23, 2002
`
`April 23, 2002
`Workbooks and printed guides about diet, health,
`and nutrition.
`
`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.
`
`#564058
`
`

`
`23.
`
`In accordance with Sections 7(b), 22 and 33(a) of the Lanham Trademark
`
`Act, Petitioner’s above-cited registrations constitute primafacie evidence of the validity
`
`of the registered marks and of the registrations thereof, Petitioner’s ownership of the
`
`marks shown in said registrations, and Petitioner’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 Respondent of Petitioner’s claim of
`
`ownership of the marks shown within such registrations.
`
`25.
`
`The Respondent has registered ZONECHEF as a trademark for “prepared
`
`entrees, side dishes and meals consisting of primarily meat, poultry, or vegetables,’’ in
`
`International Class 29, “prepared entrees, side dishes and meals consisting primarily of
`
`rice and pasta, baked goods consisting of cakes, cookies and muffins,” in International
`
`Class 30 and “food delivery services,” in International Class 39.
`
`26.
`
`Respondent’s application for registration of its ZONECHEF mark was
`
`filed on October 23, 2002 under Section 1(a) of the Trademark Act claiming a date of
`
`first use anywhere of June 1, 2003 and date of first use in commerce of September 1,
`
`2003, long after Petitioner coined and began using his ZONE Marks in 1995.
`
`27.
`
`Respondent’s application for registration of its ZONECHEF mark was
`
`filed on October 23, 2002 under Section 1(a) of the Trademark Act claiming a date of
`
`first use anywhere of June 1, 2003 and date of first use in commerce of September 1,
`
`2003 long after Petitioner’s date of first use of May 1995 for ZONE (Reg. No.
`
`2,689,749).
`
`#564058
`
`6
`
`

`
`28.
`
`Respondent’s application for registration of its ZONECHEF mark was
`
`filed on October 23, 2002 under Section 1(a) of the Trademark Act claiming a date of
`
`first use anywhere of June 1, 2003 and date of first use in commerce of September 1,
`
`2003, long after Petitioner’s date of first use of June 2000 for ZONE SKIN CARE (Reg.
`
`No. 2,623,974).
`
`29.
`
`Respondent’s application for registration of its ZONECHEF mark was
`
`filed on October 23, 2002 under Section 1(a) of the Trademark Act claiming a date of
`
`first use anywhere of June 1, 2003 and date of first use in commerce of September 1,
`
`2003, long after Petitioner’s date of first use of April 23, 2002 for ZONERX (Reg. No.
`
`2,929,836).
`
`30.
`
`The Respondent’s ZONECHEF mark and the Petitioner’s ZONE Marks
`
`are virtually identical in sound and appearance and create the same commercial
`
`impression.
`
`31.
`
`The term ZONE comprises the dominant portion of Respondent’s
`
`ZONECHEF mark.
`
`32.
`
`The term ZONE comprises the dominant portion of Petitioner’s ZONE
`
`Marks, including Petitioner’s ZONE, ZONE SKIN CARE and ZONERX.
`
`33.
`
`The term ZONE in the Respondent’s mark ZONECHEF has the identical
`
`meaning as the term ZONE in Petitioner’s registered marks and common law marks.
`
`34.
`
`The term ZONE in ZONECHEF refers to and indicates compliance with
`
`Dr. Sears and his criteria for an insulin and hormonal balanced diet. Print cuts from
`
`Respondent’s website are attached at Exhibit 3.
`
`#564058
`
`7
`
`

`
`35.
`
`Respondent’s prepared foods, baked goods and 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 Respondent’s website are attached at
`
`Exhibit 4.
`
`36.
`
`The Respondent’s goods and services, as set forth in the Reg. No.
`
`2,885,125, and Petitioner’s ZONE branded health and nutrition goods and services are
`
`highly related if not identical.
`
`37.
`
`The services set forth in Reg. No. 2,885,125 are prepared entrees, side
`
`dishes and meals consisting of primarily meat, poultry, vegetables, rice and pasta, baked
`
`goods consisting of cakes, cookies and muffins, and food delivery services.
`
`38.
`
`The goods set forth in Petitioner’s Reg.No. 2,689,749 for ZONE are
`
`books in the field of diet and nutrition.
`
`39.
`
`The goods set forth in Petitioner’s Reg. No. 2,929,836 for ZONERX are
`
`workbooks and printed guides about diet, health and nutrition.
`
`40.
`
`Respondent’s ZONECHEF goods and services are specifically concerned
`
`with diet and nutrition. Print outs from Respondent’s website are attached at Exhibit 5.
`
`41.
`
`Respondent’s Reg. No. 2,885,125 does not limit the channels of trade
`
`through which its goods and services will travel nor does it limit the consumers to whom
`
`such services are directed.
`
`42.
`
`Respondent’s goods and services are presumed to travel through all
`
`channels of trade and to be directed towards all relevant consumers.
`
`43.
`
`There are no limits on the channels of trade or consumers for Petitioner’s
`
`goods as described in Petitioner’s Reg. Nos. 2,689,749, 2,623,974, and 2,929,836.
`
`#564058
`
`8
`
`

`
`44.
`
`The Respondent’s ZONECHEF goods and services and the Petitioner’s
`
`ZONE branded goods and services will be sold or offered through the same channels of
`
`trade.
`
`45.
`
`The Respondent’s ZONECHEF goods and services and the Petitioner’s
`
`ZONE branded goods and services will be sold to the same customers.
`
`46.
`
`Consumers are likely to believe that Respondent’s goods and services,
`
`similarly marked and sold in the same channels of trade as Petitioner’s ZONE branded
`
`goods and services, come from or are sponsored or endorsed by the same source.
`
`47.
`
`Consumers are likely to expect that Respondent’s goods and 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 Petitioner’s ZONE branded goods and
`
`services.
`
`48.
`
`Upon information and belief, Respondent adopted and applied to register
`
`the mark ZONECHEF with actual knowledge of Petitioner’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 Petitioner’s ZONE Marks.
`
`49.
`
`Upon information and belief, Respondent willfully copied Dr. Sears’
`
`ZONE Marks in choosing ZONECHEF in a deliberate attempt to associate its services
`
`with Petitioner, Petitioner’s ZONE Marks and the good will therein.
`
`50.
`
`51.
`
`Respondent maintains a website at the Internet address <zonechefs.com>.
`
`Respondent provides several dietary tips on its <zonechefs.com> website.
`
`#564058
`
`9
`
`

`
`52.
`
`Respondent’s dietary tips are virtually identical to tips that Dr. Sears offers
`
`in his own ZONE branded publications.
`
`53.
`
`Respondent’s website suggests using the palm of your hand to determine
`
`the correct amount of protein to consume at each meal.
`
`l’rint outs from Respondent’s
`
`website are attached at Exhibit 6.
`
`54.
`
`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
`
`Respondent’s date of first use of the ZONE CHEF mark in 2003, describing this tip are
`
`attached at Exhibit 7.
`
`55.
`
`Respondent sells pharmaceutical grade fish oil supplements on its
`
`<zonechefs.com> website in connection with the mark Z-OMEGA-3. Print outs from
`
`Respondent’s <zonechefs.com> website are attached at Exhibit 8.
`
`56.
`
`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 {l 16.
`
`57.
`
`Dr. Sears sells his own ZONE branded pharmaceutical grade fish oil
`
`supplements. Li. at 1] 17.
`
`58.
`
`Respondent touts one of its chefs as the “former executive pastry chef to
`
`Dr. Barry Sears (author of the ZONE DIET).” Print outs from Respondent’s
`
`<zonechefs.com> website are attached at Exhibit 9.
`
`59.
`
`The trademark set forth in Respondent’s Reg. No. 2,885,125 is ZONE
`
`CHEF.
`
`#564058
`
`10
`
`

`
`60.
`
`Upon information and belief, Respondent does not use the mark ZONE
`
`CHEF as represented in its Reg. No. 2,885,125 in connection with the goods and services
`
`set forth therein. Print outs from Respondent’s <zonechefs.com> website are attached at
`
`Exhibits 4-6 and Exhibits 8-9.
`
`61.
`
`Upon information and belief, Respondent does not intend to resume use of
`
`the mark ZONE CHEF as represented in its Reg. No. 2,885,125 in connection with the
`
`goods and services set forth therein.
`
`FIRST GROUND FOR RELIEF
`
`gUNDER 15 U.S.C. § 1052§dn
`
`62.
`
`Petitioner incorporates by reference paragraphs 1 through 61 as if fully set
`
`forth herein.
`
`63.
`
`The ZONE Marks have been used continually by Petitioner since a date
`
`prior to any date on which Respondent may rely.
`
`64.
`
`Respondent’s ZONECHEF mark is identical in appearance and in
`
`commercial impression to Petitioner’s ZONE Marks.
`
`65.
`
`The goods and services of Respondent offered under its ZONECHEF
`
`mark are intended and are likely to be perceived as related to Petitioner’s goods and
`
`services under the ZONE Marks and to Dr. Sears himself.
`
`66.
`
`The use by Respondent of ZONECHEF for the goods and services listed
`
`in the application is likely to create the erroneous impression that Respondent’s goods
`
`and services originate with, are sponsored or promoted by, come from, or are otherwise
`
`associated with Petitioner or Petitioner’s goods and services provided under the ZONE
`
`Marks or that Respondent’s goods and services are endorsed, sponsored, or in some way
`
`connected with Petitioner.
`
`#564058
`
`11
`
`

`
`67.
`
`Use of ZONECHEF by Respondent is likely to cause confusion, cause
`
`mistake or to deceive the public into the belief that the services offered under
`
`ZONECHEF come from or are otherwise authorized or sponsored by Petitioner in
`
`violation of Section 2(d) of the Lanham Act, 15 U.S.C. § l052(d).
`
`SECOND GROUND FOR RELIEF
`
`§ABANDONMENT[
`
`68.
`
`Petitioner incorporates by reference paragraphs 1 through 67 as if fully set
`
`forth herein.
`
`69.
`
`Upon infonnation and belief, the Respondent has abandoned the mark
`
`which is the subject of Registration No. 2,885,125, by discontinuing use of said mark
`
`with no intent to resume said use.
`
`70.
`
`So long as Registration No. 2,885,125 is maintained, Petitioner will be
`
`unable to effectively enforce its rights and interests in its trademark ZONE.
`
`WHEREFORE, the Petitioner requests that this Petition for Cancellation be
`
`sustained and that Trademark Reg. No. 2,885,125 issued to Zone Chefs, LLC on
`
`September 14, 2004 be cancelled.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PH.D.
`
`By hi attorneys,
`
`
`
`Jggw/g/é_.9
`
`
`D borah L. Benson
`
`G
`I
`name“! 0'
`thatthlseonespandencelsbeingdeposiua
`limb:
`with thel'7:laStataPostalservleou1lrstnclnssmall Inna
`envelope addressed as the Commissioner for ’l‘raulonun-In,
`P.0.box145l.
`I: -...t 313134451...
`
`
`r‘.
`
`I
`
`.i
`
`‘.
`
`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
`
`#564058
`
`12
`
`

`
`Exhibit 1
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No.
`
`Mark:
`Reg. No.:
`Classes:
`
`ZONECHEF
`2,885,125
`29, 30, 39
`
`)
`
`) )
`
`) )
`
`)
`)
`)
`)
`)
`)
`
`BARRY D. SEARS Ph.D.,
`
`Petitioner,
`
`V.
`
`ZONECHEFS, LLC,
`
`Respondent.
`
`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 OmegaRx Zone and The Anti-Inflammatory
`
`Zone.
`
`list.
`
`7.
`
`Several of these books have appeared on The New York Times bestseller
`
`8.
`
`The Zone was number one on The New York Times bestseller list in 1996
`
`and remained on that list for approximately twenty (20) weeks.
`
`9.
`
`More than five million hard cover copies of my ZONE branded books
`
`have been sold in the United States alone.
`
`10.
`
`My works have been translated into twenty-two (22) languages and are
`
`sold in at least forty (40) foreign countries.
`
`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.
`
`#564061
`
`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.
`
`#564061
`
`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 ofthis dec1ar<aI~t6'n.
`
`3
`
`:5
`
`Decemberfi, 2005
`
`Barry D. Sears Ph.D.
`
`#564061
`
`4
`
`

`
`Exhibit 2
`
`

`
`The Zone: AnEmpirical Study
`‘
`r
`I
`
`.
`
`_
`
`H.
`
`.»
`
`_.
`
`.
`
`.
`
`page 1' Ofg
`
`_,
`
`
`
`The Zone: Evidence of a Universal Phenomenon for-Athletes
`Across Sports
`JanetA Young and Michelle D Pain
`-Monash Unz'versity, Melbourne, Australia
`
`ABSTRACT
`
`.
`
`
`
`Theoretical Frameworks
`
`Zone Sport Research
`
`Universality of the Sport Zone
`
`ual'ta ' e Anal
`
`is .
`
`_( Qu antitative Analysis
`
`1111111121
`
`
`
`v
`
`
`
`
`References
`
`
`
`ABSTRACT
`
`This paper examines the heightened states of consciousness during participation in sport termed the zone
`or flow. Theoretical frameworks and studies of the phenomenon are described. The notion of a universal
`zone in sport is explored with a review of Young's (1999a) comparative analysis of flow experiences of
`professional tennis players with Jackson's (1993, 1996) elite athletes. Qualitative analyses of tennis
`players’ and elite athletes‘ narratives of flow support flow.theory's posited structure of flow consisting of
`eight dimensions. No significant differences were found between tennis players and elite athletes on the
`
`

`
`_
`_
`A
`umV5T33~1 Phenomenon -acf
`
`.
`
`'
`
`,
`
`yses suggest that the zone or flow state is a
`athlete differences are evident.
`
`Page2 oft? '
`
`gy literature is replete with references’ to "the zone" (e.g., Clarkson,
`te, the zone characterises a
`
`transcendent or altered states of
`s are variously denoted and include the concepts of
`peaks", "perfectmoments", "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).
`
`Zone Sport Research
`Studies ofthe zone or "zone-like states" include those ofRavizza (1977, 1984), Loehr (1986),
`Garfield, and Bennett (1984), -Jackson (1992, 1993, 1995, 1 996) and Young (1999a,- 199913, 19990, «
`
`hftpi//WVVW.athleti-cinsicfhfnnm/\rn11r--eI1'>L " ' "
`
`
`

`
`moments when they" were doing something extraordinarily well"'
`
`escribe their feelings at "those
`(p.158). Eight mental and physical
`as being characteristic ofthese
`the conditions conducive to optimal
`
`htilpI//WWW.a'Chl6llClnSlQlT1t.cnm/Vnl1TM’)/t.‘.--—-I--5-
`
`1 ~
`
`

`
`a miscellaneous category. A summary ofthe results ofthis procedure, together with those obtained by
`Jackson, 1s presented m Table 1.
`
`
`
`
`
`
`
`Elite Athletes
`(Jackson, 1996)
`
`all raw data
`themes
`
`http://Www.a.th1e+inim;n1.+ f\f\14r< /v-11 v.. « rm
`
`

`
`_
`1
`_
`an analysis, Young (l_999a)‘ compared ~
`tenms players responses to the Experience Questionnaire items with Jackson's (1993) elite athletes’ fiom
`ry. Twenty-seven items of a total
`
`importance of experiential correlates of flow, responses to individual items in the Experience
`Questionnaire (Privette, 198 ) were compared. Following the procedure adopted by Yeagle, Privette,
`and Dunharn (1989) to identify differences between groups on the importance of experiential correlates
`ofthe peak experience, a series oft-tests were conducted inwhich mean item scores for each group of
`
`Elite Athletes
`(Jackson, 1996)
`
`hfi'1’\'//urunxr a+l«l.:.+.'..:...-:,_1_-i
`
`- _
`
`rrr ..-
`
`- —
`
`

`
`The Zone: An Empirical Study
`
`Pagefi of 8
`
`
`
`Free from outer restrictions
`Need to complete
`AbS°‘P‘i°“
`
`7
`
`_
`
`Personal responsibility
`O<2”R‘E01C14 §=53 U) (DI3U: (Dan EO
`J
`"U"1O0(DU)U) 0L‘0P?‘(D 9:
`
`6%E.‘U)
`
`»
`
`u
`
`expression
`
`‘SE’29°NB3(DO5
`8””§Q‘U)
`
`"1'.1"‘d"UEls-‘°f<§‘§2
`§'E‘35’:3,5“§s~§§8*”2‘e=-H”U,%"*8~=s§§92"cmHg0Q:-g0-:go-_D"
`"Uf1'JCIL""9338.33925-HaqmW53003,g9.
`'n’>‘§,"’;,"§.Q.4-!-mg8.-(%f.""‘;,cbgsBraggOo—(pmco”33%B.0
`.g.5‘°-s
`
`
`
`
`
`
`
`3-AO-D-U30O\-3>O\I\J$-x-—x—
`
`2
`
`
`
`
`
`
`
`
`
`[
`_ 465*
`3.65.
`- 4.18‘
`_
`439
`468 m -
`4.61
`‘
`4.8
`
`-
`
`oJ>-t\JLnu)
`
`3.32
`4.21
`.
`7
`4-06 2- -
`«P- »—-I
`»--A
`4.52 E 0.11‘
`3.23
`3.26
`-
`.
`4.58 "7902
`3-13
`Q
`26-44 T -
`4.87 '
`4.93
`-
`4-52
`"J -0-41
`1.83
`2.00
`.
`2-71
`2.74
`
`Q:--ALI!
`
`'xo4>4>xi-I:-lg
`
`—
`
`\1N»—*t\Jo$\Il\)\D-hUI
`.--»—-o\l\>\o"‘° *
`
`.
`~
`.
`
`1.49
`-
`7
`O\-l>- UuxlUIO\at-)6
`-
`
`
`
`3.46
`
`(DE‘.
`
`3.86
`
`4.86
`
`4.04
`
`3.38
`2-03
`2.90
`
`4.29
`4-06
`3-52
`
`2
`
`
`
`
`
`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 of individual items", and strong
`endorsement from each group of athletes for the key theoretical characteristics of flow (clear inner
`process and focus, fulfilment, intention, fun, high perfonnance, and intrinsic reward), Young (1999a)
`suggested that tennis players and elite athletes" from other sports experience flow in qualitatively similar
`manners. Notwithstanding this notion of a common flow experience, Young proposed that the finding of
`significant differences between tennis players and elite athletes on approximately one quarter of 27
`items contained in the Experience Questionnaire is evidence of individual differences for athletes across
`sports in the phenomenology of flow. Further, it was noted that the fact that many of the items of the
`inventory had to be discarded due to inadequate Cronbach apha coefficient values was indicative that
`tennis players as a group display variation in the experience of flow.
`
`»
`
`,
`
`:
`
`— Summary
`
`

`
`Apter, M. J.
`Academic Press.
`
`(1982). The ex erience ofmotivation: The theo
`
`of s lcholo ical reversals. London:
`
`References
`
`Apter, M. J. (1989). Reversal theory: Motivation, emotion and personality. London: Routedge.
`Clarkson, M. (1999). Competitive fire. Champaign, IL: Human Kinetics.
`
`. Csikzentrnihalyi, M. (1975). Play and intrinsic rewards.
`
`63.
`
`Journal of Humanistic Psychology, 15, 41-
`
`Csikzentmihalyi,
`
`Rowe.
`
`(1990). Flow: The psychology ofoptimal experience. New York": Harper &
`
`Douillard, J. (1994). Body, mind and sport. New York: Three Rivers Press.
`
`Garfield, C., & Bennett, H. (1984). Peak erformance: Mental trainin techni ues ofthe world's
`greatest athletes. New York: Warner Br
`~
`os.
`_
`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. (1995). Factors influencing the occurrence of‘flow states in elite athletes. Jgur_n_a_l_Qf
`Applied Sport Psychology, 7, 138-166.
`
`Jackson, S. A. (1996). ‘Toward a conceptual understanding to the flow experience in elite athletes.
`Research Quarterly for Bxercise and Sport, 67(1), 76-90.
`'
`
`1'\f+v;-//wwv-vmu ..A.1-1 .1‘
`
`

`
`Murphy, s. (1996). The achievement zone. New York: Berkley.
`
`
`
`Ravizza, K. (1984). Qualities of peak experience. In J. M. Silva & R. S. Weinberg (Eds.),
`Psychological foundations ofsport (pp. 452-461). Ch
`'
`
`ampaign, IL: Human Kinetics.
`
`Yeagle, E., Privette, G., & Dunham, . (1989). Highesthappiness: An analysis ofartists’ peak
`experience. Psychological Reports, 65, 523-530.
`
`Young, J.A. (1999a). Professional te
`perspectives. Unpublished doctoral thesi
`
`"
`
`Young, J.A. (1999b, May). In the zone. Tennis, pp. 40-41.
`Young, J.A. (l999c). Zoning in onpeakperformance. gvg§,_9_2 (9), 8.
`' gthe zone [On-line]. Avalab1e: .
`'
`od
`
`findin _the zone.html
`
`We look forward to your comments and feedback. Simply
`
`mail Athletic lnsi ht.
`
`e_
`
`l
`
`.
`
`Mental Health Net Award Winner
`Copyright 0 1999 Athletic Insight, Inc.
`ISSN 1536-0431
`
`Hl"l’h‘//unxrur o+1«ln+.'A$.....:...1.4.
`
`.
`
`Ivv ..-
`
`

`
`Exhibit 3
`
`

`
`
`
`®_.cm,._Q._Q%m2:0m*U0.$.®..E<&.m.%a
`
`
`
`II)IDoll
`
`DADAAIJDdu31V
`
`
`
`—u~¥ow.N.no..w»L..n..z.#;..
`
`.Eumaaem
`_.Eafiqawm
`
`
`
`
`
`>=u:o..n_mm:®muw:Uo:oN
`
`ughmo..wnEoEmwfiouun
`
`
`
`:mu__ono..uu2v_..o>.502gonna...-u
`
`
`
`
`
`
`
`
`
`Rmm-Sm-¢om“Q2....3...:3
`
`
`
`.._x.»
`
`
`
`
`
`:mu._:mmmufimamgwuuom
`
`ustbv
`
`wyuwmu%,nnM§_.mM
`
`::..3.,u.,.z;.....£ui..J,E1.
`
`PL
`
`
`
`xumcuonmuouQ_N..:o>..ou:m
`
`
`
`E___aa__m>m.8_
`
`_\§~.§
`-§
`
`...:.3§awnh35:
`
`8855
`
`>:oo..&onoo:oN.BB3\\d..E
`
`
`
`
`
`
`
`
`
`m:_umo._um._mu>N._ou.9338v_..o>>muosuno...m.>.5::oUus»wemu_._0:>>
`
`
`
`mu>_umEo:uLOHxmonm3.33..05.mwn_uwm«Enu:oNou_m_:Uxm
`
`
`
`
`
`_......\,»
`
`
`
`.902t._w_m§‘mmn;
`
`
`
`