ZHENG CAI, DBA TAI CHI GREEN TEA INC., v. DIAMOND HONG, INC.

Federal Circuit Summary

Before Prost, Wallach, and Hughes.  Appeal from the Trademark Trial and Appeal Board.

Summary: TTAB did not abuse its discretion by (1) refusing to consider factual assertions made in a brief, where no evidence was introduced supporting the assertions, and (2) refusing to consider a procedurally improper reply brief.

The TTAB cancelled Mr. Cai’s trademark registration based on a likelihood of confusion over a similar earlier registration.  In doing so, the TTAB excluded factual assertions raised in Mr. Cai’s main brief, and concluded that he “introduced no evidence.”  The TTAB also refused to consider his “reply brief,” because the TMBP does not provide for such filings by the defendant.  On appeal, Mr. Cai argued that the TTAB improperly excluded his evidence.  The Federal Circuit affirmed.  The TTAB did not abuse its discretion in determining that Mr. Cai submitted no evidence, because attorney arguments in a brief are not evidence.  It was also not error to exclude Mr. Cai’s reply brief.

This case is: ZHENG CAI, DBA TAI CHI GREEN TEA INC., v. DIAMOND HONG, INC.

Edited by: Paul Stewart

Written by: Mark E. Davis &  Mark Kachner