1208.04 Judicial Notice

The Board may take judicial notice of dictionary definitions, acronyms, and abbreviations including definitions, acronyms and abbreviations in technical dictionaries, translation dictionaries and online dictionaries which exist in printed format or that have regular fixed editions. [ Note 1.] Definitions found in slang dictionaries are also appropriate for judicial notice. [ Note 2.]

The Board may also take judicial notice of encyclopedia entries, census data, standard reference works and of commonly known facts. [ Note 3.]

The Board will generally not take judicial notice of definitions or entries found only in online dictionaries or reference works not available in a printed format [ Note 4.]; however, it will take judicial notice of definitions or entries from references that are the electronic equivalent of a print reference work or that have regular fixed editions. [ Note 5.] The Board will not take judicial notice of dictionary definitions if it is not clear what the source of the material is. [ Note 6.]

The Board normally does not take judicial notice of a term based on English spoken in another country, such as a dictionary definition reflecting "British English." [ Note 7.] However, there are circumstances where information originating outside the United States but accessible within this country may be probative as to U.S. consumer impression of a proposed mark, and the Board may exercise its discretion to take judicial notice of such information. [ Note 8.] The Board will not utilize a link or reference to a website’s Internet address to consider content that may appear there. [ Note 9.]

The Board’s well-established practice is not to take judicial notice of third-party registrations when an applicant or examining attorney requests that such notice be taken during the course of an appeal. [ Note 10.] See TBMP § 1208.02. There are several reasons for this practice. First, the record should be complete before the filing of any appeal to the Board. See 37 C.F.R. § 2.142(d); TBMP § 1203.02(e), TBMP § 1203.01, TBMP § 1207.01, and TBMP § 1208.02. Once an appeal has been filed, the proper way to seek to add evidence to the record is to file a written request with the Board to suspend the appeal and remand the application for further examination. See TBMP § 1207.02. Second, the proper way to make third-party registrations of record is not to list them, but to "submit copies of the registrations themselves, or the electronic equivalent thereof, from the USPTO’s electronic databases." See generally TBMP § 1208.03. Third, and more fundamental, the Board’s judicial notice practice, as well as these other practices, are designed to encourage applicants (and examining attorneys) to fully raise their arguments during prosecution, where they can be more efficiently resolved, and to avoid unnecessary or inefficient appeals.

The Board will not take judicial notice of facts not commonly known. [ Note 11.] Even where facts are commonly known and accepted, however, the Board is not required to take judicial notice because the taking of judicial notice is discretionary.

For a full discussion of judicial notice in the inter partes context, see TBMP § 704.12.

NOTES:

1. For decisions issued in 2000 and after, see In re tapio GmbH, 2020 USPQ2d 11387, at *3 n.10 (TTAB 2020) (Board took judicial notice of "CT" as an abbreviation for the state of Connecticut from online version of Merriam-Webster Dictionary); In re Morinaga Nyuguo Kabushiki Kaisha, 120 USPQ2d 1738, 1744 n.4 (TTAB 2016) (Board took judicial notice of the locations of Puyallup, Washington and Mount Rainer); In re Jimmy Moore LLC, 119 USPQ2d 1764, 1767-1768 (TTAB 2016) (Board may take judicial notice of online dictionary definitions also available in printed form); In re Cordua Rests. LP, 110 USPQ2d 122, 1229 n.4 (TTAB 2014) (Board took judicial notice of the definitions of "churrasco" from English language dictionaries), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013) (Board may take judicial notice of online dictionaries that exist in printed format or have regular fixed editions); In re Thomas White International Ltd., 106 USPQ2d 1158, 1160 n.1 (TTAB 2013) (judicial notice taken from dictionary existing in print format); In re Future Ads LLC, 103 USPQ2d 1571, 1572 (TTAB 2012) (judicial notice taken of definition from online dictionary stating it was from a specified print dictionary); In re Premiere Distillery LLC, 103 USPQ2d 1483, 1484 (TTAB 2012) (judicial notice taken of online dictionary reference based on Random House Dictionary); In re Jonathan Drew, Inc., 97 USPQ2d 1640, 1642 n.4 (TTAB 2011) (Board may take judicial notice of dictionaries, including online dictionaries which exist in print format); In re Greenliant Systems, Inc., 97 USPQ2d 1078, 1080 n.5 (TTAB 2010) (same); In re Osmotica Holdings Corp., 95 USPQ2d 1666, 1668 (TTAB 2010) (judicial notice taken of definitions from Random House Dictionary as accessed at the website www.dictionary.com); In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1338 (TTAB 2009) (judicial notice taken of definitions in The Dictionary of Multimedia Terms & Acronyms, Illustrated Computer Dictionary for Dummies and The Computer Glossary); In re Hotels.com, L.P., 87 USPQ2d 1100, 1103 (TTAB 2007) (definition from The American Heritage Dictionary of the English Language, retrieved from bartleby.com website), aff’d, 573 F.3d 1300, 91 USPQ2d 1532 (Fed. Cir. 2009); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 n.3 (TTAB 2008) (judicial notice taken of definition in Cassell’s Spanish-English English-Spanish Dictionary); In re Brown-Forman Corp., 81 USPQ2d 1284, 1285 n.2 (TTAB 2006) (judicial notice taken of definition in Cassell’s New French Dictionary); In re Box Solutions Corp., 79 USPQ2d 1953, 1957 (TTAB 2006) (judicial notice taken of definitions in Computer Desktop Encyclopedia and Dictionary of Computer and Internet Terms); In re Reed Elsevier Properties Inc., 77 USPQ2d 1649, 1653 n.8 (TTAB 2005) (definition from net.speak—the internet dictionary), aff’d, 482 F.3d 1376, 82 USPQ2d 1378 (Fed. Cir. 2007); In re Isabella Fiore LLC, 75 USPQ2d 1564, 1568 n.7 (TTAB 2005) (judicial notice taken of translation in Cassell’s Italian Dictionary); In re Styleclick.com, 58 USPQ2d 1523, 1525 (TTAB 2001) (definitions from computer dictionaries, i.e., net.speak—the internet dictionary, The Computing Dictionary and The Illustrated Dictionary of Microcomputers); In re 3Com Corp., 56 USPQ2d 1060, 1061 n.3 (TTAB 2000) (judicial notice of definitions in technical reference works).

For decisions issued before 2000, see In re Azteca Restaurant Enterprises Inc., 50 USPQ2d 1209, 1210 n.6 (TTAB 1999) (dictionary definition submitted with examining attorney’s brief); In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1537 (TTAB 1998) (well settled that dictionary listings comprise matter of which Board can take judicial notice); In re Carolina Apparel, 48 USPQ2d 1542, 1543 (TTAB 1998) (definitions from Webster’s New Geographical Dictionary submitted with examining attorney’s appeal brief); In re North American Free Trade Association, 43 USPQ2d 1282, 1285 n.6 (TTAB 1997) (definition from Black’s Law Dictionary); In re Analog Devices Inc., 6 USPQ2d 1808, 1810 n.2 (TTAB 1988) (judicial notice of technical trade dictionaries such as IEEE Standard dictionary of Electric and Electronics Terms) aff’d, 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989); University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

2. In re Wilcher Corp., 40 USPQ2d 1929, 1933 n.4 (TTAB 1996).

3. For decisions issued in 2000 and after, see, e.g., In re International Watchman, Inc., 2021 USPQ2d 1171, at *4 n.5 (TTAB 2021) (Board took judicial notice of the text of the North Atlantic Treaty); In re Guild Mortgage Company, 2020 USPQ2d 10279, at *7 nn.26-28 (TTAB 2020) (Board took judicial notice of the distance between the respective addresses of the applicant and registrant and "the substantial size" of the populations of San Diego and Los Angeles); In re tapio GmbH, 2020 USPQ2d 11387, at *13 n.46 (TTAB 2020) (Board took judicial notice of 2010 U.S. Census records for the top 1,000 surnames); In re S. Malhotra & Co., 128 USPQ2d 1100, 1103 n.5 (TTAB 2018) (Board took judicial notice of "Detailed Languages Spoken at Home and Ability to Speak English for the Population 5 Years and Over for the United States: 2009-2013," published by the U.S. Census to find that Greek is a common, modern language); In re Weiss Watch Co., 123 USPQ2d 1200, 1205 n.10 & n.12 (TTAB 2017) (Board took judicial notice that "eszett" is the letter ß in the German alphabet from online translation dictionary Langenscheidt Dictionary at en.langenscheidt.com/german-english/eszett and separately that one origin of the surname WEISS is a German habitational name from Dictionary of American Family Names (Oxford University Press 2003)); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1087 n.3 (TTAB 2016) (Board may take judicial notice of information from encyclopedias); In re Highlights for Children, Inc., 118 USPQ2d 1268, 1271 n.7 (TTAB 2016) (Board may take judicial notice of U.S. Census Report); In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016) (Board took judicial notice that beer is often relatively inexpensive, subject to impulse purchase, and often ordered orally in a bar or restaurant); In re Aquamar, Inc., 115 USPQ2d 1122, 1127 n.6 (TTAB 2015) (Board took judicial notice of the August 2013 United States Census Bureau’s "Language Use in the United States: 2011" report, indicating that after English, Spanish is the most commonly spoken language in the United States, and over 12% of the United States population speaks Spanish); In re Nieves & Nieves LLC, 113 USPQ2d 1639, 1642 (TTAB 2015) (Board took judicial notice of two online government reports providing statistics of Internet use in the United States); In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.24 (TTAB 2013) (judicial notice taken of entry for "tea" from Encyclopedia Britannica); In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1338 (TTAB 2009) (judicial notice taken of listing in Computer Desktop Encyclopedia); In re Tokutake Industry Co., 87 USPQ2d 1697, 1700 n.1 (TTAB 2008) (census data); In re Yeley, 85 USPQ2d 1150, 1153 nn.10, 11 (TTAB 2007) (judicial notice taken of The Little Giant Encyclopedia of Names, and that some persons use initials in lieu of a given name); In re Thermo LabSystems Inc., 85 USPQ2d 1285, 1291 (TTAB 2007) (common knowledge that places are often named after individuals); In re Joint-Stock Co. "Baik", 84 USPQ2d 1921, 1923 n.2 (TTAB 2007) (judicial notice taken of entry for Baikal Lake in Encyclopedia International); In re Brown-Forman Corp., 81 USPQ2d 1284, 1286 (TTAB 2006) (Baton Rouge is the capital of Louisiana); In re Isabella Fiore LLC, 75 USPQ2d 1564, 1566 n.5 (TTAB 2005) (Statistical Abstract of the United States regarding population of the United States; the population of the United States is a fact of which judicial notice can be taken); In re Eddie Z’s Blinds and Drapery Inc., 74 USPQ2d 1037, 1038 n.3 (TTAB 2005) (definition in McGraw Hill Computer Desktop Encyclopedia); In re Consolidated Specialty Restaurants Inc., 71 USPQ2d 1921, 1927 (TTAB 2004) (judicial notice taken of Merriam-Webster’s Geographical Dictionary and The Columbia Gazetteer of North America); In re Broyhill Furniture Industries Inc., 60 USPQ2d 1511, 1514 n.5 (TTAB 2001) (judicial notice taken of The Encyclopedia of Furniture, The Complete Guide To Furniture Styles, and Seng Furniture Facts showing that Danish, Scandinavian and Mediterranean are styles of furniture); In re Major League Umpires, 60 USPQ2d 1059, 1060 n.2 (TTAB 2001) (the National League is part of Major League Baseball); In re Infinity Broadcasting Corp. of Dallas, 60 USPQ2d 1214, 1218 n.5 (TTAB 2001) (common knowledge that radio broadcasts may be heard in real-time on the Internet).

For decisions issued before 2000, see, e.g., In re Dial-A-Mattress Operating Corp., 52 USPQ2d 1910, 1916 (TTAB 1999) toll-free telephone area codes such as "1-888" are used by numerous persons and businesses), rev’d on other grounds, 240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir. 2001) (In re Astra Merck Inc., 50 USPQ2d 1216, 1219 (TTAB 1998) (judicial notice taken of Physician’s Desk Reference and other PDR publications); In re U.S. Cargo Inc., 49 USPQ2d 1702, 1704 n.3 (TTAB 1998) ("U.S." means the United States, and the United States is a geographic area with defined boundaries); In re Perry Manufacturing Co., 12 USPQ2d 1751, 1752 (TTAB 1989) (New York is world-renowned center of culture and high fashion and people from throughout world go to New York to purchase latest styles in clothing, from haute couture to off-the-rack garments).

Compare, In re Brown-Forman Corp., 81 USPQ2d 1284, 1286 (TTAB 2006) (Board denied request for judicial notice that Moulin Rouge is a famous Parisian nightclub and that its name served as title of a film starring Nicole Kidman that was nominated for an Academy Award); In re Viventia Biotech Inc., 80 USPQ2d 1376, 1377 (TTAB 2006) (Board did not take judicial notice of Internet search); In re Red Bull GmbH, 78 USPQ2d 1375, 1379 n.7 (TTAB 2006) (Board would not take judicial notice of "scholarly reviews" of an essay).

4. In re Jimmy Moore LLC, 119 USPQ2d 1764, 1768 (TTAB 2016) (on appeal, Board will not take judicial notice of definitions from Wikipedia or commercial websites that do not constitute dictionary definitions); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 n.5 (TTAB 2007) (Board would not take judicial notice of online encyclopedia); In re Total Quality Group Inc., 51 USPQ2d 1474, 1476 (TTAB 1999). See also In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002); In re Styleclick.com Inc., 57 USPQ2d 1445, 1447 n.3 (TTAB 2000).

5. In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013) (judicial notice taken of definition from Merriam-Webster Online Dictionary and Thesaurus); In re Dietrich, 91 USPQ2d 1622, 1631 n.15 (TTAB 2009) (judicial notice taken of definition from Merriam-Webster Online Dictionary from www.merriam-webster.com); In re Petroglyph Games Inc., 91 USPQ2d 1332, 1334 n.1 (TTAB 2009) (judicial notice taken of definition from Dictionary.com because from The Random House Unabridged Dictionary); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1590 n.8 (TTAB 2008) (judicial notice taken of definition from Merriam-Webster Online Dictionary); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006) (judicial notice taken of definition from Encarta Dictionary because it is readily available in specifically denoted editions via the Internet and CD-ROM).

Please Note: the Board will consider definitions found only in online dictionaries if made of record during the prosecution of the application. See TBMP § 1208.03.

6. In re Jimmy Moore LLC, 119 USPQ2d 1764, 1768 (TTAB 2016) (on appeal, Board will not take judicial notice from excerpts that do not indicate source); In re Gregory, 70 USPQ2d 1792, 1793 (TTAB 2004) (judicial notice not taken of photocopies submitted with examining attorney’s brief because neither the pages nor brief specified the dictionaries from which the copies were made).

7. In re Future Ads LLC, 103 USPQ2d 1571, 1572 n.2 (TTAB 2012) (Board declined to take judicial notice of term from Cambridge Dictionaries Online because definition stated it was "British English"). Cf. In re Manwin/RK Collateral Trust, 111 USPQ2d 1311, 1313 (TTAB 2014).

8. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) ("The probative value, if any, of foreign information sources must be evaluated on a case-by-case basis.").

9. In re Future Ads LLC, 103 USPQ2d 1571, 1572 n.3 (TTAB 2012) (Board did not take judicial notice of online dictionary definition because only the link to the website was provided). Cf. In re HSB Solomon Associates LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (Board will not utilize web address to access site and consider whatever content appears).

10. In re House Beer, LLC, 114 USPQ2d 1073, 1075 (TTAB 2015) (Board does not take judicial notice of files of applications or registrations residing in the Office, including entries in file of cited registration); In re Wada, 48 USPQ2d 1689, 1689 n.2 (TTAB 1998) (request in reply brief that Board take judicial notice of "thousands of registered marks incorporating the term NEW YORK for products and services that do not originate in New York state or city" denied), aff’d, 194 F.3d 1297, 52 USPQ2d 1539 (Fed. Cir. 1999); In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1717 n.18 (TTAB 2011); In re Jonathan Drew, Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011); In re Carolina Apparel, 48 USPQ2d 1542, 1542 n.2 (TTAB 1998); In re Caserta, 46 USPQ2d 1088, 1090 n.4 (TTAB 1998) (Board refused to take judicial notice of the characters listed in registrations and their manner of use); MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69955 (Oct. 7, 2016) (no judicial notice of USPTO records; "The official record of a Board proceeding must be complete, accurate, and reliable, especially because in direct appeals to the Federal Circuit the court’s review of the Board’s decision is confined to the four corners of the administrative record. … The burden of creating a complete evidentiary record by introducing in documentary form information contained in the USPTO’s trademark file records is most appropriately borne by the party wishing to introduce such evidence rather than by the Board."). See also In re Jimmy Moore LLC, 119 USPQ2d 1764, 1767-68 (TTAB 2016) (on appeal, Board denied request to take judicial notice of patent).

11. In re tapio GmbH, 2020 USPQ2d 1138, at *11 n.39 (TTAB 2020) (Board declined to take judicial notice "that TAPIO identifies an East Finnish forest spirit god of Finnish mythology, because we do not believe that this a commonly known fact, at least in the United States.").