United States Court of Appeals 

for the Federal Circuit ______________________ 

ZHENG CAI, DBA TAI CHI GREEN TEA INC.,

Appellant

v.

DIAMOND HONG, INC.,

Appellee

______________________ 

2018-1688

______________________ 

Appeal from the United States Patent and Trademark 

Office, Trademark Trial and Appeal Board in No. 

92062714.

______________________ 

Decided: August 27, 2018

______________________ 

ZHENG CAI, Vernon Hills, IL, pro se. 

 JONATHAN E. MOSKIN, Foley & Lardner LLP, New 

York, NY, for appellee. Also represented by DIANE GRACE 

ELDER, Chicago, IL. 

 ______________________ 

Before PROST, Chief Judge, WALLACH and HUGHES, Circuit 

Judges.

WALLACH, Circuit Judge.
2 ZHENG CAI v. DIAMOND HONG, INC. 

Appellant Zheng Cai DBA Tai Chi Green Tea Inc. 

(“Mr. Cai”) appeals an opinion of the U.S. Patent and 

Trademark Office’s (“USPTO”) Trademark Trial and 

Appeal Board (“TTAB”) cancelling registration of his 

mark “WU DANG TAI CHI GREEN TEA” due to a likelihood of confusion with Appellee Diamond Hong, Inc.’s 

(“Diamond Hong”) registered mark, “TAI CHI,” pursuant 

to 15 U.S.C. § 1052(d) (2012). See Diamond Hong, Inc. v. 

Zheng Cai, Cancellation No. 92062714, 2018 WL 916315, 

at *5–8 (T.T.A.B. Feb. 14, 2018); see also 15 U.S.C. 

§ 1052(d) (providing a mark may not be placed on the 

principal register if it so resembles a mark already registered “as to be likely . . . to cause confusion”). We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(B) (2012). 

We affirm. 

DISCUSSION

Diamond Hong petitioned for cancellation of Mr. Cai’s 

mark based on a likelihood of confusion with its registered 

TAI CHI mark. See Appellee’s Suppl. App. 23. The TTAB 

found likelihood of confusion, giving limited consideration 

to Mr. Cai’s briefing because it “contraven[ed]” certain 

provisions of the Trademark Trial and Appeal Board 

Manual of Procedure (“TBMP”). Diamond Hong, 2018 WL

916315, at *3, *5−7.1

Mr. Cai appeals the TTAB’s evidentiary ruling excluding evidence in his main brief, and its finding of likelihood 

of confusion. See Appellant’s Br. 2–3. We address each 

argument in turn. 

 

1 The TTAB also made prerequisite findings on 

standing and priority of use in Diamond Hong’s favor that 

are not challenged on appeal. See Diamond Hong, 2018 

WL 916315, at *4. See generally Appellant’s Br. 
ZHENG CAI v. DIAMOND HONG, INC. 3

I. The TTAB’s Evidentiary Ruling

A. Standard of Review

We review TTAB evidentiary rulings for abuse of discretion. Coach Servs., Inc. v. Triumph Learning LLC, 668 

F.3d 1356, 1363 (Fed. Cir. 2012). “We will reverse only if 

the [TTAB]’s evidentiary ruling was: (1) clearly unreasonable, arbitrary, or fanciful; (2) based on an erroneous 

conclusion of law; (3) premised on clearly erroneous 

findings of fact; or (4) the record contains no evidence on 

which the [TTAB] could rationally base its decision.” Id. 

(internal quotation marks, brackets, and citation omitted).

B. The TTAB Did Not Abuse Its Discretion in Excluding 

Mr. Cai’s Evidence

The TTAB considered the 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 are not evidence introduced into the trial 

record.” Diamond Hong, 2018 WL 916315, at *3; see 

Appellee’s Suppl. App. 69−75 (Mr. Cai’s Main Brief); see 

also 37 C.F.R. §§ 2.126(a)(1), 2.128(b) (2016) (setting forth 

rules for submission of briefs to the TTAB). The TTAB 

also did not consider Mr. Cai’s reply brief because the 

TMBP does not provide for such filings and gives the 

TTAB broad discretion in considering them. Diamond 

Hong, 2018 WL 916315, at *3 (citing TBMP § 801.02(d)

(June 2017) (“There is no provision for filing a reply brief, 

rebuttal brief, rejoinder brief, etc. by a party in the position of defendant. If a party in the position of defendant 

files such a brief, it may be stricken, or given no consideration, by the [TTAB].”)). The TTAB therefore stated that 

Mr. Cai “introduced no evidence.” Id. 

Mr. Cai contends that the TTAB improperly excluded 

evidence submitted in his briefs. Appellant’s Br. 2–3. We 

disagree. 
4 ZHENG CAI v. DIAMOND HONG, INC. 

Although the procedural guidelines in the TBMP do 

not have the force of law, see TBMP Introduction (explaining that “[t]he manual does not modify, amend, or serve 

as a substitute for any existing statutes, rules, or decisional law and is not binding upon the [TTAB or] its 

reviewing tribunals”), the TBMP is accorded a degree of 

deference to the extent that it has the “power to persuade,” Christensen v. Harris Cty., 529 U.S. 576, 587 

(2000) (internal quotation marks and citation omitted); 

see id. (describing agency manuals as documents that 

“lack the force of law,” but are still “entitled to respect”

(internal quotation marks and citation omitted)). Indeed, 

we have affirmed the TTAB’s determinations, specifically 

with regard to evidence admission, where they are clearly 

in line with the language of the TBMP. See, e.g., Bishop 

v. Flournoy, 319 F. App’x 897, 899−900 (Fed. Cir. 2009) 

(agreeing with the TTAB that it was not required to 

consider certain evidence based on TBMP guidelines); In 

re DSS Envtl., Inc., 113 F. App’x 902, 907 (Fed. Cir. 2004) 

(similar); see also Am. Rice, Inc. v. Dunmore Props. S.A., 

353 F. App’x 428, 432 (Fed. Cir. 2009) (affirming a TTAB 

determination based on the TBMP concerning denial of a 

motion for time to conduct discovery). 

The TTAB did not abuse its discretion in determining 

that Mr. Cai submitted no evidence. With respect to Mr. 

Cai’s Main Brief, the TBMP provides that evidentiary 

matters are resolved in accordance with the “Federal 

Rules of Evidence, the relevant portions of the Federal 

Rules of Civil Procedure, the relevant provisions of Title 

28 of the United States Code, and the rules of practice in 

trademark cases (i.e., the provisions of Part 2 of Title 37 

of the Code of Federal Regulations).” TBMP § 702.02. 

Mr. Cai’s Main Brief contains numerous assertions of fact. 

See, e.g., Appellee’s Suppl. App. 71 (“Our Green Tea is so 

Unique in the US Market that no Any [sic] Other Green 

Tea is Comparable to Ours.”). This information is not 

evidence under any of the relevant rules, as the TTAB 
ZHENG CAI v. DIAMOND HONG, INC. 5

recognized. See Diamond Hong, 2018 WL 916315, at *3 

(citing Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 

1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no 

substitute for evidence.”)). 

With respect to his Reply Brief, 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. 

TBMP § 801.02(d); see Odom’s Tenn. Pride Sausage, Inc. 

v. FF Acquisition, L.L.C., 600 F.3d 1343, 1346 (Fed. Cir. 

2010) (stating that we give the TTAB significant latitude 

in applying the TBMP when the language therein is 

“permissive”). Because Diamond Hong initiated the 

cancellation proceedings by filing a petition, see Appellee’s 

Suppl. App. 23, Mr. Cai was in the position of a defendant, and was therefore not entitled to file a reply brief, see

TBMP § 801.02(d). Accordingly, the TTAB did not abuse 

its discretion in applying the TBMP and excluding Mr. 

Cai’s submissions. 

II. Likelihood of Confusion

A. Standard of Review and Legal Standard

We review the TTAB’s legal conclusions de novo and 

its findings of fact for substantial evidence. In re N.C. 

Lottery, 866 F.3d 1363, 1366 (Fed. Cir. 2017). “Substantial evidence is ‘such relevant evidence as a reasonable 

mind would accept as adequate to support a conclusion.’” 

Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 

746 F.3d 1317, 1321 (Fed. Cir. 2014) (quoting Consol. 

Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)). 

“Where two different conclusions may be warranted based 

on the evidence of record, the [TTAB]’s decision to favor 

one conclusion over the other is the type of decision that 

must be sustained by this court as supported by substantial evidence.” In re Bayer Aktiengesellschaft, 488 F.3d 

960, 970 (Fed. Cir. 2007) (citation omitted). 
6 ZHENG CAI v. DIAMOND HONG, INC. 

Section 1052(d) provides that a trademark may be refused if it

[c]onsists of or comprises a mark which so resembles a mark registered in the [USPTO], or a mark 

or trade name previously used in the United 

States by another and not abandoned, as to be 

likely, when used on or in connection with the 

goods of the applicant, to cause confusion, or to 

cause mistake, or to deceive. 

15 U.S.C. § 1052(d) (emphasis added). In Application of 

E.I. DuPont DeNemours & Co., our predecessor court 

articulated thirteen factors to consider when determining 

likelihood of confusion (“DuPont factors”). See 476 F.2d 

1357, 1361 (CCPA 1973).2 “Not all of the DuPont factors 

are relevant to every case, and only factors of significance 

to the particular mark need be considered.” In re Mighty 

Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010) (citation 

omitted). “Likelihood of confusion is a question of law 

with underlying factual findings made pursuant to the 

DuPont factors.” Stone Lion Capital Partners, 746 F.3d at 

1321 (citation omitted); see Herbko Int’l, Inc. v. Kappa 

 

2 The thirteen factors are as follows: (1) similarity 

of the marks; (2) similarity and nature of goods described 

in the marks’ registrations; (3) similarity of established 

trade channels; (4) conditions of purchasing; (5) fame of 

the prior mark; (6) number and nature of similar marks

in use on similar goods; (7) nature and extent of actual 

confusion; (8) length of time and conditions of concurrent 

use without evidence of actual confusion; (9) variety of 

goods on which mark is used; (10) market interface between applicant and owner of a prior mark; (11) extent to 

which applicant has a right to exclude others from use of 

its mark; (12) extent of potential confusion; and (13) any 

other established probative fact on effect of use. See 

Application of E.I. DuPont, 476 F.2d at 1361.
ZHENG CAI v. DIAMOND HONG, INC. 7

Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002) (“[A] 

showing of actual confusion is not necessary to establish a 

likelihood of confusion.” (citation omitted)). “This court 

reviews the [TTAB]’s factual findings on each DuPont

factor for substantial evidence, and its legal conclusion of 

likelihood of confusion de novo.” Stone Lion Capital 

Partners, 746 F.3d at 1321 (citations omitted). 

B. The TTAB Did Not Err in Finding Likelihood of Confusion Between the Two Marks

In its likelihood of confusion analysis, the TTAB considered the first three DuPont factors, treating the rest as 

neutral because neither party submitted evidence related 

to them. Diamond Hong, 2018 WL 916315, at *5–8 (considering similarity of the marks, similarity and nature of 

goods described in the marks’ registrations, and similarity 

of trade channels). Mr. Cai argues the TTAB improperly 

weighed these three DuPont factors to arrive at an incorrect conclusion regarding likelihood of confusion. See 

Appellant’s Br. 11−19. We disagree with Mr. Cai. 

Substantial evidence supports the TTAB’s findings 

with respect to each DuPont factor, and the TTAB did not 

err as to its ultimate conclusion of likelihood of confusion. 

We analyze the factors in the same order as the TTAB: 

similarity of the nature of the goods, similarity of established trade channels, and similarity of the marks. See

Diamond Hong, 2018 WL 916315, at *5–8. With respect 

to the similarity and nature of the goods, the goods covered by each mark overlap. Mr. Cai’s WU DANG TAI 

CHI GREEN TEA mark identifies the goods as “Green 

tea; Tea; Tea bags.” Appellee’s Suppl. App. 14. In turn, 

among many goods identified in its registration, Diamond 

Hong’s TAI CHI mark identifies “tea.” Id. at 15. Given 

this plain overlap, the TTAB’s determination that the 

“parties’ goods . . . are identical in part” is supported by 

substantial evidence. Diamond Hong, 2018 WL 916315, 

at *6. 
8 ZHENG CAI v. DIAMOND HONG, INC. 

With respect to similarity of the established trade 

channels through which the goods reach customers, the 

TTAB properly followed our case law and “presume[d] 

that the identical goods move in the same channels of 

trade and are available to the same classes of customers 

for such goods—here, general consumers who consume or 

purchase tea.” Id.; see In re Viterra Inc., 671 F.3d 1358, 

1362 (Fed. Cir. 2012) (“[I]t is well established that, absent 

restrictions in the application and registration, [identical] 

goods and services are presumed to travel in the same 

channels of trade to the same class of purchasers.” (internal quotation marks and citation omitted)). As discussed 

above, the marks cover identical goods, tea, compare 

Appellee’s Suppl. App. 14, with id. at 15, and therefore 

this presumption attaches, see In re Viterra, 671 F.3d at 

1362. Mr. Cai failed to produce evidence to rebut this

presumption. See Appellant’s Br. 16−19 (making arguments without citing evidence concerning trade channels). 

With regard to the similarity of the marks themselves, we have stated the TTAB must examine “the 

similarity or dissimilarity of the marks in their entireties 

as to appearance, sound, connotation[,] and commercial 

impression.” In re Viterra, 671 F.3d at 1362 (internal 

quotation marks and citation omitted). “The proper test 

is not a side-by-side comparison of the marks, but instead 

whether the marks are sufficiently similar in terms of 

their commercial impression such that persons who 

encounter the marks would be likely to assume a connection between the parties.” Coach Servs., 668 F.3d at 1368 

(internal quotation marks and citation omitted). 

“[W]here . . . the goods at issue are identical, the degree of 

similarity necessary to support a conclusion of likely 

confusion declines.” In re Viterra, 671 F.3d at 1363 (internal quotation marks and citation omitted). 

The marks are similar, when considered as a whole,

because they both invoke a large yin-yang symbol and 

prominently display the term TAI CHI. Specifically, the 
ZHENG CAI v. DIAMOND HONG, INC. 9

WU DANG TAI CHI GREEN TEA mark is described as 

follows: 

[t]he color(s) green and white is/are claimed as a 

feature of the mark. . . . The mark consists of a 

circle outlined in green, that divides to be half 

green and half white, with a single dot located at 

each half with the opposite color; on the top of the 

mark, it has words “Tai Chi Green Tea”; at the 

bottom of the mark, it has words “Wu Dang.” 

Appellee’s Suppl. App. 14. Similarly, the TAI CHI mark 

is presented in the following terms: “[t]he mark consists of 

a man engaged in a tai chi position atop a yin-yang symbol with the term ‘Tai Chi’ below the symbol and a Chinese character on each side of the symbol.” Id. at 15. The 

fact that color is not claimed as a feature of Diamond 

Hong’s mark, id., further highlights the likelihood of 

confusion because, as the TTAB correctly identified, 

Diamond Hong’s mark “could be presented in a greenand-white color scheme like [Mr. Cai’s] mark,” Diamond 

Hong, 2018 WL 916315, at *7. 

Mr. Cai’s arguments against these findings rehash 

those he made below and seek to rely on evidence either 

not admitted by the TTAB or not even submitted to it. 

See Appellant’s Br. 11–19. We do not consider evidence 

that is not part of the trial record. 15 U.S.C. § 1071(a)(4) 

(“The United States Court of Appeals for the Federal 

Circuit shall review the decision from which the appeal is 

taken on the record before the United States Patent and 

Trademark Office.” (emphasis added)). Therefore, the 

TTAB’s findings as to the DuPont factors are supported by 

substantial evidence and the TTAB did not err in finding 

a likelihood of confusion. 

CONCLUSION

We have considered Mr. Cai’s remaining arguments 

and find them unpersuasive. The Opinion of the U.S. 
10 ZHENG CAI v. DIAMOND HONG, INC. 

Patent and Trademark Office’s Trademark Trial and 

Appeal Board is

AFFIRMED

COSTS

No costs.