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Zheng Cai v. Diamond Hong, Inc.

TM Cancellation Affirmed Where Registrant Tendered Only Argument, Not Evidence, In Defense

Zheng Cai v. Diamond Hong, Inc., __ F.3d __, 2018 WL 4055656 (Fed. Cir. Aug. 27, 2018) (Prost, WALLACH, Hughes) (TTAB) (1 of 5 stars)

Fed Cir affirms TTAB cancellation of Mr. Cai’s registration due to likelihood of confusion with existing mark. The TTAB did not abuse its discretion in declining to consider a variety of factual assertions made by Mr. Cai because they were “not evidence introduced into the trial record,” but were unsupported assertions bordering on attorney argument. Substantial evidence supported the TTAB’s likelihood of confusion determination. The opinion notes that Mr. Cai’s WU DANG TAI CHI GREEN TEA mark was identical in part to Diamond Hong’s TAI CHI mark, and notes similarity of impression between the two marks. Both marks identified “tea” in their registrations, and the TTAB was entitled to presume similarity of established trade channels by which the goods would reach consumers in such circumstances. The opinion declines to consider Mr. Cai’s assertion of evidence not submitted to the TTAB.

KEYWORDS: TRADEMARK; LIKELIHOOD OF CONFUSION