stating that courts may consult dictionaries and encyclopedias when taking judicial notice of facts
How later courts described this case
- stating that courts may consult dictionaries and encyclopedias when taking judicial notice of facts
- relying on fourteen registrations issued between 1906 to 1983 and stating that dictionaries defined "B.V.D.” as a trademark used for underwear
- observing that BVD, KODAK, LEVI’S, COCA-COLA and SINGER have dictionary listings and thus are entitled to protection from dilution
- “When a trademark attains dictionary recognition as a part of the language, we take it to be reasonably famous.”
Written by the judges who cited it.
The opinion
NICHOLS, Senior Circuit Judge,
concurring.
I join in the court’s opinion. In view of the use made therein of the concept of judicial notice, I am particularly glad to see it. Judicial notice gets quite a workout in TTAB appeals, but it is not acknowledged as often as it should be. With so little at stake in the grant or refusal of a trademark or service mark registration, it is often not worthwhile to fill the record with proofs of every fact a court might wish to take into account. Judicial notice fills the gaps. It is just as well for a judicial author to say so when he is doing this, and every now and then to take a side glance at Fed.R. of Evid. 201 to be sure he is using judicial notice correctly. It is available at the appellate level, even if not used by the trial tribunal, and may support or undermine that tribunal’s conclusions. Rule 201(f). It is particularly needed when the issue is “likelihood of confusion.” To what extent can we resort to our “gut feeling” to supply evidence of what consumers will think falsely that is not in the record? By the Advisory Committee’s notes, it must be “beyond reasonable controversy.” We cannot use a debatable supposed fact to bootstrap ourselves to a dubious conclusion.
Amalgamated Bank of New York v. Amalgamated Trust & Savings Bank, 842 F.2d 1270 (Fed.Cir.1988), by another panel than this one, illustrates what I consider the proper use and misuse of judicial notice. We invoked by judicial notice what we supposed we, and everyone else, knew about how the banking business is conducted in this Year of Our Lord 1988. We professed not to know how “consumers,” i.e., customers of banks get to be customers, as well as bankers do, so we would not substitute a contrary view for that of bankers, that identity of name does not by itself produce confusion. Actually, around the comer from our courthouse, on the same block of 15th Street, N.W., are two large full-service banks, independent of one another, but both using the word “American” in their names. If that produced customer confusion, it would seem they would do something about it. The temptation to point this out was resisted, as it does seem to be pushing judicial notice too far to draw conclusions from what might be an atypical situation. What if, however, there had been nothing else to go on? Arguably, if the parties on both sides fail to offer evidence on a relevant point, they stipulate by implication that the court will decide it by judicial notice.
It would be proper to take judicial notice that a lot of deregulation of banks had occurred in recent years, and that some of it has made a lot of difference to customers, for example the availability of interest on checking accounts. It would be all wrong to determine that deregulation has put customers’ bank deposits at a greater risk of loss. It was all wrong for the board to say that deregulation had effected such changes that experienced absence of customer confusion in the past had no bearing *730 on whether such confusion would be experienced in the future. In the absence of any showing of any item of deregulation that could have a bearing on confusion as to a bank’s identity, this was a controversial inference, and because controversial, a misuse of judicial notice.
The importance of Rule 201 cannot be underestimated in light of the numerous cases in which questions of appropriate use of judicial notice arise. I am pleased with the panel opinion’s reference to so undermentioned a rule.