Handling Opposition and Cancellation matters pro se (i.e., without an attorney) at the Trademark Trial and Appeal Board (TTAB) is a risky proposition. The TTAB operates according to a set of guidelines presented in the Trademark Board Manual of Procedure (TBMP). In addition to trademark-specific issues in the TBMP guidelines, the TTAB procedure also follows the Federal Rules of Evidence, relevant portions of the Federal Rules of Civil Procedure, and relevant portions of Title 28 of the United States Code. As a result, when Mr. Cai decided to fight a TTAB Cancellation proceeding filed against his registered trademark by himself, his chances of success were diminished from the start.
The Federal Circuit Court of Appeals, in the precedential opinion Zheng Cai, DBA Tai Chi Green Tea, Inc. v. Diamond Hong, Inc. (August 27, 2018), affirmed the TTAB decision to cancel Mr. Cai’s trademark registration. Specifically, the TTAB cancelled Mr. Cai’s trademark registration WU DANG TAI CHI GREEN TEA due to a likelihood of confusion with Diamond Hong’s registered mark TAI CHI. The TTAB considered arguments presented in Mr. Cai’s Main Brief but did not consider the factual assertions and figures displayed and discussed in Mr. Cai’s brief, which were not evidence introduced into the trial record. Mr. Cai’s Main Brief contained numerous assertions of fact, for example (“Our Green Tea is so Unique in the US Market that no Any Other Green Tea is Comparable to Ours.”). This information was not considered evidence under any of the relevant TBMP rules.
The TTAB also did not consider Mr. Cai’s reply brief because the TBMP does not provide for such filings and gives the TTAB broad discretion in considering them. The plain language of the TBMP states that the TTAB is not required to permit a party in the position of defendant to file a reply brief. Because Diamond Hong initiated the Cancellation proceedings by filing a petition, Mr. Cai was in the position of a defendant, and was therefore not entitled to file a reply brief. As a result, because Mr. Cai made arguments and introduced information that did not comply with the TBMP rules, the TTAB considered his arguments to be based on evidence which was not even part of the trial record. Accordingly, when comparing the evidence properly introduced by Diamond Hong’s attorneys against Mr. Cai’s arguments, the TTAB concluded that there was a likelihood of confusion, and cancelled Mr. Cai’s registration.
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