Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367

Diamond Hong, Inc. petitioned the TTAB to cancel Zheng Cai’s (doing business as Tai Chi Green Tea Inc.) federal registration for the mark “WU DANG TAI CHI GREEN TEA,” asserting a likelihood of confusion with its registered mark “TAI CHI.”
The TTAB found Diamond Hong had standing and priority (unchallenged on appeal) and concluded there was a likelihood of confusion, cancelling Cai’s mark.
The TTAB refused to consider factual materials and figures in Cai’s opening and reply briefs as evidence, treating those submissions as non‑evidentiary under the TBMP and applicable USPTO rules.
Cai appealed, arguing the TTAB abused its discretion by excluding his submitted evidence and that the TTAB erred in its DuPont likelihood‑of‑confusion analysis.
The Federal Circuit reviewed the evidentiary ruling for abuse of discretion and the likelihood‑of‑confusion legal conclusion de novo (with factual findings for substantial evidence).
The court affirmed: (1) the TTAB did not abuse its discretion in excluding materials not properly entered into the record or submitted in an unauthorized reply brief; and (2) substantial evidence supported the TTAB’s DuPont factor findings (identical/overlapping goods, presumed shared trade channels, and similar marks invoking a yin‑yang device and the term “Tai Chi”).

Issue	Plaintiff's Argument (Diamond Hong)	Defendant's Argument (Cai)	Held
Whether the TTAB abused its discretion by excluding factual materials in Cai’s briefs	TBMP and practice rules allow the TTAB to decline consideration of materials not in the trial record; exclusion appropriate	TTAB improperly excluded evidentiary materials attached to his main and reply briefs	No abuse of discretion; TBMP and rules permit treating briefs’ assertions/figures as non‑evidence and striking or ignoring unauthorized reply briefs
Whether the TTAB erred in finding likelihood of confusion under 15 U.S.C. § 1052(d)	Marks and trade channels are similar; cancellation justified (plaintiff sought cancellation)	Marks not sufficiently similar; proffered evidence (mostly excluded) would rebut confusion	Affirmed: substantial evidence supports TTAB on DuPont factors—identical/overlapping goods, presumed common channels, and similar commercial impressions of the marks

Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir.) (standard for reviewing TTAB evidentiary rulings and comparison of marks’ commercial impression)
In re Viterra Inc., 671 F.3d 1358 (Fed. Cir.) (presumption that identical goods travel in same channels; degree of similarity needed declines for identical goods)
Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317 (Fed. Cir.) (standard for substantial evidence review and that likelihood of confusion is a legal conclusion based on factual DuPont findings)
Application of E.I. DuPont DeNemours & Co., 476 F.2d 1357 (C.C.P.A.) (articulating the 13 DuPont factors for likelihood of confusion)
Enzo Biochem, Inc. v. Gen‑Probe Inc., 424 F.3d 1276 (Fed. Cir.) (attorney argument is not a substitute for evidence)
In re N.C. Lottery, 866 F.3d 1363 (Fed. Cir.) (review framework: de novo review of legal conclusions and substantial evidence for factual findings)