  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 likeli-
hood 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 regis-
tered “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 exclud-
ing 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 dis-
cretion. 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 unrea-
sonable, 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 omit-
ted).
 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 asser-
tions 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 posi-
tion of defendant. If a party in the position of defendant
files such a brief, it may be stricken, or given no consider-
ation, 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 (explain-
ing that “[t]he manual does not modify, amend, or serve
as a substitute for any existing statutes, rules, or deci-
sional 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 per-
suade,” 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 defend-
ant, 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). “Substan-
tial 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 substan-
tial 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 re-
fused if it
    [c]onsists of or comprises a mark which so resem-
    bles 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 be-
tween 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 Confu-
            sion Between the Two Marks
    In its likelihood of confusion analysis, the TTAB con-
sidered 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 (con-
sidering 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 incor-
rect 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 estab-
lished 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 cov-
ered 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.” (inter-
nal 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 argu-
ments without citing evidence concerning trade channels).
    With regard to the similarity of the marks them-
selves, 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 connec-
tion 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 (in-
ternal 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 sym-
bol with the term ‘Tai Chi’ below the symbol and a Chi-
nese 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 green-
and-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.
