Zhejiang Medicine Co., Ltd.v.Zhejiang Medicines & Health Products Imp. & Exp. Co., Ltd.

Trademark Trial and Appeal Board

Jul 27, 2018

No. 92062946 (T.T.A.B. Jul. 27, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 27, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Zhejiang Medicine Co., Ltd.
v.
Zhejiang Medicines & Health Products Imp. & Exp. Co., Ltd.
_____

Cancellation No. 92062946
_____

Matthew Saunders of Saunders & Silverstein LLP,
for Zhejiang Medicine Co., Ltd.
Michelle C. Dunn of Platinum Intellectual Property LLP,
for Zhejiang Medicines & Health Products Imp. & Exp. Co., Ltd.
_____

Before Bergsman, Greenbaum and Coggins,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Zhejiang Medicines & Health Products Imp. & Exp. Co., Ltd. (“Respondent”) is the
owner of a registration on the Principal Register for the mark ZMC and design, shown
below, for “farinaceous food pastes for human consumption; herbal infusions; royal
jelly for human consumption not for medical purposes,” in Class 30.1

1 Registration No. 3885165, registered December 7, 2010; Section 8 affidavit accepted.
Cancellation No. 92062946
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The description of the mark in the registration reads as follows:
The mark consists of the word “ZMC” and an oval device
surrounding it.
The wording “ZMC” has no meaning in a foreign language.
Zhejiang Medicine Co., Ltd. (“Petitioner”) petitioned to cancel the registration of
Respondent’s mark on the ground that Respondent abandoned its mark.
Respondent, in its Answer, denied the salient allegations in the Petition for
Cancellation.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Respondent’s registration file. The parties introduced the
testimony and evidence listed below:
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A. Petitioner’s testimony and evidence.
1. Testimony declaration of Menglai Zhou, Petitioner’s Deputy
Manager for Regulatory Affairs;2 and
2. Notice of reliance on the following items:
a. Respondent’s admissions to Petitioner’s first set of requests for
admission Nos. 1-23;3
b. Respondent’s admissions to Petitioner’s second set of requests
for admission Nos. 1 and 10-98 with the accompanying
documents;4
c. Respondent’s response to Petitioner’s interrogatory No. 1 (first
set of interrogatories);5
d. Respondent’s response to Petitioner’s interrogatory No. 1
(second set of interrogatories);6 and
e. Respondent’s responses to document request No. 2.7
B. Respondent’s testimony and evidence.
1. Testimony declaration of Zhaili Yao, Respondent’s General
Manager of the ZMC Botanical and Health Food Branch;8 and
2. Notice of reliance of the following items:

2 18 TTABVUE. The portions of the Zhou testimony declaration designated confidential are
posted at 17 TTABVUE.
3 20 TTABVUE 6-14.
4 20 TTABVUE 16-58.
5 20 TTABVUE 60-65.
6 20 TTABVUE 67-71.
7 20 TTABVUE 73-78. Responses to document production requests are admissible solely for
the purpose of showing that a party has stated that there are no responsive documents. See
City Nat’l Bank v. OPGI Mgmt. GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674 n.10
(TTAB 2013); ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036 n.7 (TTAB 2012).
Accordingly, the response to document request No. 2 is considered only to the extent that
that we construe the response to state that no responsive documents exist “to show or
identify” that Respondent has used the mark on, inter alia, alimentary paste, herbal
infusions, and royal jelly for human consumption not for medical purposes.
8 26 TTABVUE.
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a. Copy of the Chinese copyright registration for the ZMC mark;9

b. Copy of Respondent’s website dated January 11, 2000;10

c. Copies of Respondent’s website between February 21, 2003
through November 29, 2016;11

d. Copy of Petitioner’s website dated May 30, 2010;12 and

e. Copies of Petitioner’s website from July 21, 2011 and May 28,
2013.13

II. Evidentiary Issues
A. Respondent’s motion to strike the testimony declaration of Menglai
Zhou.
Petitioner, in its initial disclosures, identified Menglai Zhou as having knowledge
about, inter alia, Petitioner’s adoption, ownership, and use of Petitioner’s ZMC
mark.14 Likewise, in its pretrial disclosures, Petitioner identified Mr. Zhou as
testifying to, inter alia, Petitioner’s selection, adoption, ownership and use of
Petitioner’s ZMC mark.15 Subsequently, Mr. Zhou testified about Petitioner’s use of
its ZMC trademark in the United States.16

9 27 TTABVUE 8-10.
10 27 TTABVUE 12.
11 27 TTABVUE 14-21.
12 27 TTABVUE 23-24.
13 27 TTABVUE 26-31.
14 Respondent’s motion to strike the Zhou testimony declaration, Exhibit 7 (19 TTABVUE
49).
15 Respondent’s motion to strike the Zhou testimony declaration, Exhibit 8 (19 TTABVUE
54).
16 18 TTABVUE.
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Respondent moves to strike the Zhou testimony declaration “because it
inadequately pleads the issues in the present Cancellation proceeding under Fed. R.
Civ. P. 26(a)(3)(A) and 37 C.F.R. § 2.120.”17 As best we understand the motion,
Respondent argues that because the only ground for cancellation is abandonment,
the only testimony that Mr. Zhou is permitted to introduce is about that claim (e.g.,
“However, Mr. Zhou has only testified [about] the use of the mark by the Petitioner,
not for the issue of non-use of the Registrant’s marks and the previous relationship
between the parties.”).18
Since Mr. Zhou did not include his testimony regarding the
non-use issue of the Registrant, and information regarding
the relationship between him and the Registrant which is
the issue and the matters to be testified by the Petitioner
in the present Cancellation proceeding, but only testified
[to] the use of the mark of the Petition, which is not the
issue in the present Cancellation proceeding, the
Declaration of Mr. Zhou is not adequate to support the
allegations of the Petition that Registrant has not used the
marks at the [sic] issue, and that the Registrant’s marks
should be cancelled.19
Standing is a threshold issue that must be proved by a plaintiff in every inter
partes case. To establish its standing, Petitioner must prove that it has a “real
interest,” i.e., a “reasonable” basis for its belief of damage. See Empresa Cubana Del
Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014);

17 19 TTABVUE 2. In its brief, Respondent renewed its motion to strike the Zhou testimony
declaration for precisely that reason. Respondent’s Brief, p. 9 (31 TTABVUE 10) (“for
inadequately pleading the issues in the instant proceeding.”).
18 19 TTABVUE 4.
19 Id. In its brief, Respondent explained that Mr. Zhou’s testimony regarding Petitioner’s use
of the ZMC mark is irrelevant to whether Respondent used the ZMC and design mark at
issue in this proceeding. Respondent’s Brief, p. 9 (31 TTABVUE 10).
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Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton
Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982).
Petitioner has adequately alleged a real interest in this proceeding by the allegation
that it uses the “ZMC trademark in United States commerce in connection with
products identical or related to those identified in [Respondent’s] Registrations.”20
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000) (petitioner owned prior registrations for “Laser” mark for golf clubs and golf
balls, and these registrations and products sold under the marks suffice to establish
petitioner’s direct commercial interest and its standing to petition for cancellation of
respondent’s “Laserswing” mark for golf clubs); Int’l Order of Job’s Daughters v.
Lindeburg & Co., 727 F.2d 1087, 220 USPQ 1017, 1020 (Fed. Cir. 1984) (finding
petitioner’s production and sale of merchandise bearing the registered mark
sufficient to prove standing); Nobelle.com LLC v. Qwest Commc’ns Int’l Inc., 66
USPQ2d 1300, 1304 (TTAB 2003). However, merely alleging that it has standing is
not enough. Petitioner must also prove that it uses the ZMC mark in commerce in
connection with products related to those identified in Respondent’s registration.
Accordingly, Petitioner must introduce testimony or evidence to prove that it is using
the ZMC mark and such testimony or evidence is proper even though the only claim
for cancellation is abandonment.
In view of the foregoing, Respondent’s motion to strike the Zhou testimony
declaration is denied.

20 Petition for Cancellation ¶2 (1 TTABVUE 3).
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B. Respondent’s motion to withdraw and amend its responses to Petitioner’s
first set of requests for admission.

During the briefing stage of this proceeding, Respondent filed a motion to
withdraw and amend its admissions to Petitioner’s first set of requests for
admission.21 A summary of the prosecution history is necessary to analyze the merits
of Respondent’s motion. The relevant prosecution is set forth below:
• Stipulation to extend trial dates (April 18, 2017) including the close of
Petitioner’s trial period on June 17, 2017 and the close of Respondent’s trial
period on August 16, 2017 filed and granted;22
• Petitioner’s notice of reliance on Respondent’s admissions to Petitioner’s
first set of requests for admission (June 14, 2017);23
• The first appearance of Respondent’s current counsel (June 14, 2017);24
• Respondent’s introduction of testimony (August 9, 2017) and notice of
reliance (August 13, 2017);25
• Petitioner did not introduce any rebuttal testimony or evidence;
• Petitioner’s brief (November 20, 2017);26 and

21 30 TTABVUE.
22 15 and 16 TTABVUE.
23 20 TTABVUE.
24 22 TTABVUE.
25 26 and 27 TTABVUE.
26 29 TTABVUE.
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• Respondent’s motion to withdraw and replace its admissions to Petitioner’s
first set of requests for admission (December 15, 2017).27
Rule 36(b) of the Federal Rules of Civil Procedure provides the following:
EFFECT OF AN ADMISSION; WITHDRAWING OR AMENDING IT.
A matter admitted under this rule is conclusively
established unless the court, on motion, permits the
admission to be withdrawn or amended. ...[T]he court may
permit withdrawal or amendment if it would promote the
presentation of the merits of the action and if the court is
not persuaded that it would prejudice the requesting party
in maintaining or defending the action on the merits. An
admission under this rule is not an admission for any other
purpose and cannot be used against the party in any other
proceeding.
“Upon motion under Fed. R. Civ. P. 36(b), the Board may permit withdrawal or
amendment of an admission when the presentation of the merits of the proceeding
will be subserved thereby, and the propounding party fails to satisfy the Board that
withdrawal or amendment will prejudice said party in maintaining its action or
defense on the merits.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
§ 525 (June 2018). The timing of a motion to withdraw or amend an admission plays
a significant role in the Board’s determination of whether the propounding party will
be prejudiced by withdrawal or amendment. See Hobie Designs Inc. v. Fred Hayman
Beverly Hills Inc., 14 USPQ2d 2064, 2065 (TTAB 1990) (motion to withdraw
admissions granted when propounding party’s testimony period had not yet opened);
JohnstonPump/Gen. Valve Inc. v. Chromalloy Am. Corp., 13 USPQ2d 1719, 1721
(TTAB 1989) (motion to withdraw admissions granted when case was still in pretrial

27 30 TTABVUE.
Cancellation No. 92062946
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stage). In Hobie Designs, the Board noted that “[a]ny possible prejudice to opposer
can therefore easily be overcome by extending the discovery period,” because the trial
periods had not opened. 14 USPQ2d at 2065. Likewise, in JohnstonPump, because
the case was in the pretrial stage, the Board noted that prejudice to applicant would
be avoided and mitigated by reopening discovery. 13 USPQ2d at 1721. The Board also
noted that a more restrictive standard applies to relieving a party of an admission
when the case is in the trial phase. Id. citing 999 v. C.I.T. Corp., 3 FR Serv. 3d 923,
776 F.2d 866 (9th Cir. 1985) and Duford v. Sears, Roebuck and Co., 9 FR Serv. 3d
1175, 833 F.2d 407 (1st Cir. 1987).
Respondent relies on M&M Fitness LLC v. Knockout Fitness, LLC, 2014 WL
11034341, Cancellation No. 92057401 (TTAB Aug. 27, 2014) (not precedential),28
where the Board found that petitioner having to prove its case rather than relying on
respondent’s admissions did not constitute sufficient prejudice to prevent the
withdrawal of the admissions and also that there was no special difficulties in
obtaining evidence that would prejudice petitioner. However, respondent, in M&M
Fitness, filed its request to withdraw its admission prior to the opening of petitioner’s
testimony period leading to the Board’s holding that petitioner would not be
prejudiced:
While the Board recognizes that Petitioner relied on the
admissions in filing its motion for partial summary
judgment, such reliance does not rise to the level of
“prejudice” as contemplated under Rule 36(b).

28 TTABVUE docket entry 25 in Cancellation No. 92057401.
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* * *
Thus, we are not persuaded that Petitioner would be
prejudiced if Respondent’s motion is granted, particularly
since the Board, as provided below, will reopen discovery
for Petitioner to permit Petitioner to take follow-up
discovery based on Respondent’s late-filed responses to the
requests for admission.29
When Respondent’s new counsel made her appearance in this case, it was
incumbent upon counsel to review the entire file for the case, including Respondent’s
responses to Petitioner’s discovery, to review Petitioner’s testimony and evidence,
including the notice of reliance on Respondent’s admissions to Petitioner’s first set of
requests for admission, and to prepare for the introduction of Respondent’s testimony
and evidence, including Petitioner’s testimony and evidence that Respondent needed
to rebut. Thus, Respondent knew or should have known that Petitioner was relying
on Respondent’s admissions to Petitioner’s first set of requests for admissions to prove
that Respondent was not using its marks on the goods in the registration sought to
be cancelled. Under such circumstances, it was incumbent upon Respondent to file
its motion to withdraw and replace its admissions to Petitioner’s first set of requests
for admission as soon as practicable to minimize the prejudice to Petitioner and to
allow the parties and the Board the opportunity to craft corrective measures, if
possible.30

29 Id. at 25 TTABVUE 6.
30 We are not stating categorically that the Board would have granted Respondent’s request
to withdraw and replace its admissions had Respondent filed it during its testimony period.
However, there may have been more options available for minimizing the prejudice to
Petitioner had it been filed during Respondent’s testimony period, rather than filing the
request during the briefing stage when there were no options available because the trial was
over.
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Under the circumstances of this case, we find that Petitioner will be prejudiced by
withdrawal of Respondent’s admissions to Petitioner’s requests for admission at this
late stage of the proceedings because doing so would preclude Petitioner from
establishing a prima facie case of abandonment. In view thereof, Respondent’s
request to withdraw and replace its admissions to Petitioner’s first set of requests for
admission is denied.
III. Standing
As noted above, standing is a threshold issue that must be proven by the plaintiff
in every inter partes case. See Empresa Cubana, 111 USPQ2d at 1062. Menglai Zhou,
Petitioner’s Deputy Manager for Regulatory Affairs, testified that since at least as
early as April 2007, Petitioner has been using the ZMC trademark in connection with
pharmaceuticals, dietary and nutritional supplements, vitamins, tea, various food
products, and online retail store services featuring those products.31 Because
Petitioner is using a mark that is similar to Respondent’s registered mark on goods
that are arguably related to the goods listed in Respondent’s description of goods,
Petitioner presumptively has an interest in the outcome of these proceedings beyond
that of the general public. See Books on Tape Inc. v. Booktape Corp., 836 F.2d 519, 5
USPQ2d 1301, 1302 (Fed. Cir. 1987); Grote Indus., Inc. v. Truck-Lite Co., LLC, 126
USPQ2d 1197, 1201 (TTAB 2018); Poly-America, L.P. v. Illinois Tool Works Inc., 124
USPQ2d 1508, 1512 (TTAB 2017). Respondent, in its brief, does not challenge
Petitioner’s standing.

31 Zhou Testimony Decl. ¶¶3-4 (18 TTABVUE 2).
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We find that Petitioner has established its standing to bring the petition for
cancellation.
IV. Abandonment
A. Statement of the Law
The Trademark Act provides for the cancellation of a registration if the registered
mark has been abandoned. See Section 14 of the Trademark Act, 15 U.S.C. §1064.
Under Section 45 of the Trademark Act, 15 U.S.C. §1127, a mark is considered
abandoned when “its use has been discontinued with intent not to resume such use.”
The definition of abandonment is found in this provision, as follows:
A mark shall be deemed to be “abandoned” if either of the
following occurs:
(1) When its use has been discontinued with intent not to
resume such use. Intent not to resume may be inferred
from circumstances. Nonuse for 3 consecutive years
shall be prima facie evidence of abandonment. “Use” of
a mark means the bona fide use of such mark made in
the ordinary course of trade, and not made merely to
reserve a right in a mark.
…
15 U.S.C. §1127.

Because registrations are presumed valid under the law, the party seeking their
cancellation bears the burden of proving a prima facie case of abandonment by a
preponderance of the evidence. See On-Line Careline Inc. v. Am. Online Inc., 229 F.3d
1080, 56 USPQ2d 1471, 1476 (Fed. Cir. 2000); Cerveceria Centroamericana S.A. v.
Cerveceria India Inc., 13 USPQ2d at 1309; Exec. Coach Builders, Inc. v. SPV Coach
Co., 123 USPQ2d 1175, 1180-81 (TTAB 2016). If the petitioner presents a prima facie
Cancellation No. 92062946
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case of abandonment, the burden of production, i.e., going forward, then shifts to the
trademark holder to rebut the prima facie showing with evidence. Id. at 1311.
Abandonment is a question of fact. See Stock Pot Rest., Inc. v. Stockpot, Inc., 737
F.2d 1576, 222 USPQ 665, 667 (Fed. Cir. 1984). Thus, any inference of abandonment
must be based on proven fact. Section 45 of the Trademark Act. See also Cerveceria
Centroamericana S.A. v. Cerveceria India Inc., 13 USPQ2d at 1310 (“The protection
due the registrant is provided by requiring that the inference have an adequate
foundation in proven fact. Whenever an inference is based on pure speculation and
‘there is no basis … to infer nonuse,’ a prima facie case of abandonment must fail.”)
(quoting P.A.B. Produits et Appareils de Beaute v. Satinine Societa in Nome Collettivo
di S.A. e. M. Usellini, 570 F.2d 328, 332-33, 196 USPQ 801, 804-05 (CCPA 1978));
Stetson v. Howard D. Wolf & Assoc's, 955 F.2d 847, 21 USPQ2d 1783, 1785 (2d Cir.
1992) (A party claiming that a mark has been abandoned must show “non-use of the
mark by the legal owner and no intent by that person or entity to resume use.”). Proof
of non-use for three consecutive years, however, constitutes prima facie evidence of
abandonment, because it supports an inference of lack of intent to resume use.
Section 45 of the Trademark Act. See also On-line Careline Inc. v. Am. Online Inc., 56
USPQ2d at 1476 (“The party seeking cancellation establishes a prima facie case of
abandonment by showing proof of nonuse for three consecutive years.”); Emergency
One, Inc. v. Am. FireEagle, Ltd., 228 F.3d 531, 56 USPQ2d 1343 (4th Cir. 2000).

Cancellation No. 92062946
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B. Evidence of Abandonment
We begin our analysis of the evidence by identifying the goods at issue:
“farinaceous food pastes for human consumption; herbal infusions; royal jelly for
human consumption not for medical purposes.”
“Farinaceous” is defined as follows:
1. consisting or made of flour or meal, as food.
2. containing or yielding starch, as seeds; starchy.
3. mealy in appearance or nature.32
“Paste” is defined, inter alia, as “dough, especially when prepared with shortening,
as for making pie crust and other pastry.”33
Accordingly, “farinaceous food pastes” are flour dough.
“Herbal” is defined as “of, or relating to, or consisting of herbs.” “Herbs” are
defined as “a flowering plant whose stem is above ground does not become woody.
Such a plant when valued for its medicinal properties, flavor, scent or the like.”34
“Infusion” is defined as “a liquid extract, as tea, prepared by steeping or
soaking.”35
Accordingly, “herbal infusions” are herbal teas or extracts.

32 Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2018). The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014),
aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome
Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d
1375, 1378 (TTAB 2006).
33 Id.
34 Id.
35 Id.
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“Royal jelly” is defined as “a viscous substance secreted from the pharyngeal
glands of worker honeybees, fed to all larvae during their first few days and afterward
only to those larvae selected to be queens.”36
In Respondent’s previously-discussed admissions to Petitioner’s first set of
requests for admission, Respondent admitted that as of December 21, 2009 (the
application filing date of Respondent’s registration), it has not used its mark in
connection with alimentary paste,37 herbal infusions,38 or royal jelly for human
consumption not for medicinal purposes.39 “Alimentary” is defined as follows:
1. concerned with the function of nutrition; nutritive.
2. pertaining to food.
3. providing sustenance or maintenance.40
An “alimentary paste” is a food paste which is a broad enough term to encompass a
“farinaceous food paste” and, therefore, Respondent has admitted that it has not used
its mark in connection with a “farinaceous food paste.”
As noted above in footnote 7, we construe Respondent’s response to Petitioner’s
request for production of documents No. 2 (“Documents sufficient to show or identify
each of Registrant’s Products.”) as including a statement that there are no documents

36 Id.
37 Request for admission No. 3 (20 TTABVUE 8); see also request for admission No. 15 (20
TTABVUE 11) (Respondent has not used the mark in connection with alimentary paste).
38 Request for admission No. 7 (20 TTABVUE 9); see also request for admission No. 18 (20
TTABVUE 11) (Respondent has not used the mark in connection with herbal infusions).
39 Request for admission No. 11 (20 TTABVUE 10); see also request for admission No. 22 (20
TTABVUE 12) (Respondent has not used the mark in connection with royal jelly).
40 Dictionary.com based on the Random House Unabridged Dictionary (2018).
Cancellation No. 92062946
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showing use of Respondent’s mark in connection with, inter alia, alimentary paste,
herbal infusions, and royal jelly.41
In opposition to Petitioner’s evidence, Respondent introduced the testimony
declaration Mr. Zhaili Yao, Respondent’s General Manager of the ZMC Botanical and
Health Food Branch. Mr. Yao introduced the following:
• Product brochures “from 2014 or 2015 to present” advertising the sale of
Respondent’s products, including “tea and herbal extracts.”42 These
brochures do not show use of Respondent’s mark from December 7, 2010,
the registration date, to 2014, a period of more than three years.
• Yao Exhibit B are photographs “showing [Respondent] attending U.S.
tradeshows under the ZMC marks from 2006 to present.”43 However, none
of the photographs show Respondent’s mark used in connection with
“farinaceous food pastes for human consumption; herbal infusions; [or]
royal jelly for human consumption not for medical purposes.”
• Yao Exhibit C is Respondent’s exhibitor listing from the SupplySide West
trade show website.44 The website states that the trade show was in Las
Vegas, Nevada in September 2017. The website does not advertise
Respondent’s sale of “farinaceous food pastes for human consumption;
herbal infusions; royal jelly for human consumption not for medical

41 20 TTABVUE 75-76.
42 Yao Testimony Decl. ¶5 and Exhibit A (26 TTABVUE 3 and 8-12).
43 Yao Testimony Decl. ¶6 and Exhibit B (26 TTABVUE 3 and 14-24).
44 Yao Testimony Decl. ¶7 and Exhibit C (26 TTABVUE 4 and 26).
Cancellation No. 92062946
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purposes.” It states the Respondent’s “product line covers the range of joint
health ingredients, amino acids and sports nutrition ingredients, plant
extracts, protein and natural colors.”
• Yao Exhibit E is, inter alia, a copy of records for “herbal food beverage sales
mostly related to the [Respondent’s] Registration between 2014-2016.”45
The records identify “American Ginseng,” “Ginkgo Bilboa Extract,”
“Rutin,” and “medicinal herbs extract.” “Ginseng” is defined as “any of
several plants of the genus Panax, … having an aromatic root used
medicinally.”46 “Ginkgo” is defined as “a large shade tree, Ginkgo Bilboa,
native to China … with edible kernels.”47 “Rutin” is defined as “a bright
yellow or greenish-yellow substance, C27H30O16, obtained chiefly from
buckwheat, and used in the treatment of capillary fragility.”48 While
ginseng and ginkgo bilboa may be “herbal infusions,” Respondent’s records
do not show use of the mark from December 7, 2010, the registration date
through May 20, 2014, the earliest date on the records,49 a period of more
than three years.

45 Yao Testimony Decl. ¶9 and Exhibit E (26 TTABVUE 4 and 35-41).
46 Dictionary.com based on the Random House Unabridged Dictionary (2018).
47 Id.
48 Id.
49 Yao Testimony Decl. Exhibit E (26 TTABVUE 39).
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• Yao Exhibit G is a copy of records relating to shipments of “food additives”
to United States between 2013 and 2016.50 The records identify “pea
protein,” “garlic extract,” “rice protein,” and “nutritional food supplements.”
There is no testimony or other evidence that proves that these products are
“farinaceous food pastes for human consumption; herbal infusions; [or]
royal jelly for human consumption not for medical purposes.”51
Respondent also submitted the following evidence to show use of its ZMC and
design mark:
• A copy of Respondent’s website dated January 11, 2000 retrieved from the
Waybackmachine (https://archive.org/web/).52 There are several problems
with this exhibit. First, it is in Chinese, not English, so we cannot read it.
Second, it shows the ZMC and design mark on a building, not on the
products at issue. Finally, it shows the mark as of January 11, 2000, not on
or after December 7, 2010, the registration date.

50 Yao Testimony Decl. ¶11 and Exhibit E (26 TTABVUE 5 and 51-56).
51 Respondent’s counsel’s statement in the brief identifying pea proteins as farinaceous food
pastes (31 TTABVUE 9) is not evidence on which we may rely. See In re U.S. Tsubaki, Inc.,
109 USPQ2d 2002, 2006 (TTAB 2014) (disregarding outside counsel’s conclusory unverified
statements made without proper foundation regarding marketing of goods) (citing In re
Simulations Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (where appellant
argued that the magazines at issue deal with unrelated subject matter, the court held that
“[s]tatements in a brief cannot take the place of evidence.”); In re Scarbrough, 500 F.2d 560,
182 USPQ 298, 302 (CCPA 1974) (where patent claims were rejected for the insufficiency of
disclosure under Section 112, the response of appellant was argument in lieu of evidence
leading the court to hold that “argument of counsel cannot take the place of evidence lacking
in the record.”)); see also Martahus v. Video Duplication Servs. Inc., 3 USPQ2d 417, 27
USPQ2d 1846, 1849 (Fed. Cir. 1993) (“mere attorney arguments unsubstantiated by record
evidence are suspect at best”).
52 27 TTABVUE 2 and 12.
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• Copies of Respondent’s website retrieved from the Waybackmachine dated
February 21, 2003, July 22, 2013, and November 29, 2016.53 The problem
with these exhibits is that they do not show the use of the ZMC and design
mark on or in connection with the goods at issue.
C. Analysis
Petitioner has established a prima facie case of abandonment based on at least
three consecutive years of nonuse by its reliance on Respondent’s admissions to
Petitioner’s first set of requests for admission and Respondent’s response to
Petitioner’s request for production of documents No. 2. Thus, the burden of going
forward and rebutting the prima facie showing, with evidence, shifts to Respondent.
Upon close and careful consideration of Respondent’s testimony and evidence, we
find that Respondent’s testimony and evidence fails to show use of Respondent’s mark
for at least three consecutive years after December 7, 2010, the registration date of
Respondent’s registration, and it does not show an intent to resume use because it
fails to show what, if anything, Respondent did to make use of the mark during that
period.54

53 27 TTABVUE 3 and 14-21.
54 Respondent reliance on its Section 8 declaration of use is misplaced. (31 TTABVUE 9-10).
First, neither the specimen, nor the statements made in an affidavit or declaration in the
registration file, are evidence on behalf of a registrant unless they are introduced in evidence
during the registrant’s testimony period. Trademark Rule 2.122(b)(2), 27 C.F.R. § 2.122(b)(2).
Second, even if the specimen and statements from Respondent’s Section 8 declaration were
probative, they do not show use of Respondent’s mark from December 7, 2010, the
registration date, until the June 7, 2017 filing of the declaration.
Cancellation No. 92062946
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Accordingly, we find that Respondent abandoned its mark because there was
nonuse from at least December 7, 2010, the registration date, through December 7,
2013 with no intent to resume use.

Decision: The petition to cancel Registration No. 3885165 for the mark ZMC and
design is granted.