Arnita Y. Boswell and James W. Clementv.Mavety Media Group Ltd.

Trademark Trial and Appeal Board

Jul 28, 1999

No. 91099058 (T.T.A.B. Jul. 28, 1999)

Paper No. 41
ejs
THIS DISPOSITION IS CITABLE
AS PRECEDENT OF THE TTAB JULY 28, 99

U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Arnita Y. Boswell and James W. Clement

v.

Mavety Media Group Ltd.
_____

Opposition No. 99,058
to application Serial No. 74/066,893
filed on June 7, 1990
_____

James W. Clement, pro se and as attorney for Arnita Y.
Boswell

Lawrence E. Abelman of Abelman Frayne Rezac & Schwab for
Mavety Media Group Ltd.
______

Before Cissel, Seeherman and Hohein, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Arnita Y. Boswell and James W. Clement have opposed the
application of Mavety Media Group Ltd. to register BLACK
TAIL, with the word "black" disclaimed, for adult
entertainment magazines.1 Although their amended notice of

1 Application Serial No. 74/066,893, filed June 7, 1990. The
application was filed based on an asserted intention to use the
mark in commerce; an amendment to allege use was subsequently
Opposition No. 99,058
2
opposition2 is filled with argument, opposers essentially
allege that opposer Arnita Y. Boswell is an African American
female and the mother of a daughter, and that opposer James
M. Clement is a white male with four children and seven
grandchildren; that "adult entertainment" is to some extent
prurient in nature and purpose; that in the minds of a
substantial portion of the general public one distinct type
of adult entertainment magazine includes crude, vulgar
photographs of naked and scantily clad women in pornographic
poses; that the purpose of including such photographs of
women in sexually provocative poses is to sexually arouse
the male readers of the magazines; that in the context of
the marketplace and judging by the content of the magazines,
the purpose of the photographs of these women is to
characterize women as mere female sexual objects to be used
by men to satisfy their sex drive impersonally; that a
substantial portion of the general public would immediately
conclude, upon seeing or hearing the word TAIL used in
connection with an adult entertainment magazine, that the

filed, asserting first use and first use in commerce on July 2,
1990.
2 Following the institution of the proceeding applicant filed a
motion to strike irrelevant, immaterial and impertinent
allegations from the notice of opposition. In response, opposers
moved for leave to file an amended notice of opposition. The
Board accepted the amended notice, since under the Federal Rules
of Civil Procedure a plaintiff may amend its pleading once before
a responsive pleading is filed. Fed. R. Civ. P. 15(a). However,
in view of applicant's statement that it intended to file another
motion to strike, and to avoid a further round of papers, the
Opposition No. 99,058
3
magazine was an adult entertainment magazine of the type
described above, and would further recognize the word TAIL
used in connection with such an adult entertainment magazine
as a vulgar and derogatory reference to a woman with whom a
man has had or intends to have sex, or a vulgar and
derogatory reference to all women as female sex objects;
that a large percentage of the general public who see or
hear the words BLACK TAIL used for adult entertainment
magazines will consider the words to be insulting and
derogatory to black women and to women of every color; that
a substantial portion of the general public will recognize
the words BLACK TAIL as used in the name of adult
entertainment magazines as characterizing black, or African
American, women as mere female sexual objects, and this
attitude toward black women is similar to the attitude of
slave owners toward black women during the time of slavery;
and that some portion of the general public may not care
that the use of the words BLACK TAIL are insulting and
derogatory to black women because they are prejudiced, but
that they will recognize that the use of the words TAIL or
BLACK TAIL in connection with adult entertainment magazines
is a vulgar reference to a woman with whom the man has had
or intends to have sex, or is a vulgar reference to all
women, especially black women, as female sex objects.

Board reviewed the pleading and sua sponte struck certain
Opposition No. 99,058
4
Accordingly, opposers allege that the use of BLACK TAIL as
the name of adult entertainment magazines disparages women
as a group, and disparages African American women as a
group, brings women as a group into contempt, and brings
African American women as a group into contempt, brings
women as a group into disrepute, and brings African American
women as a group into disrepute; that the use of BLACK TAIL
for adult entertainment magazines is, with respect to women
in general, African American women in particular, and a
substantial portion of men of all races and colors in the
United States, shocking to the sense of decency or
propriety, is disgraceful, disreputable and offensive, and
gives offense to the conscience or moral feelings.
In its answer applicant denied the salient allegations
of the notice of opposition. Applicant also asserted, as
"affirmative defenses," that the views of the mark alleged
by opposers are those of the opposers themselves, and not of
a substantial composite of the relevant public, and that the
provisions of Section 2(a) of the Trademark Act prohibiting
the registration of "scandalous or immoral" and
"disparaging" marks are unconstitutional.
The record includes the pleadings; the file of the
opposed application; and the affidavit testimony, submitted
by stipulation of the parties, of opposers, in which Ms.

paragraphs as failing to state proper grounds for opposition.
Opposition No. 99,058
5
Boswell states that she is an adult African American woman,
has one child (a daughter) and two grandchildren, and in
which Mr. Clement states that he is a white adult male with
four children and seven grandchildren. Both state their
belief that they would be damaged by the registration of
applicant's mark. That is the extent of opposers'
testimony. Opposers have also made of record, under a
notice of reliance, definitions of the word "tail" taken
from seven dictionaries, and copies of ten magazines,
including issues of "Big Butt," "Black Tail" and "High
Society." Applicant has relied on opposers' responses to
applicant's interrogatories and requests for admission;
various third-party registrations including those containing
the word or element "TAIL"; applicant's own registration for
the mark TAIL ENDS for adult entertainment magazines; a
dictionary definition of the word "tail"; third-party
registrations for marks which, according to applicant, are
suggestive of sexual intercourse or promiscuity, and
dictionary definitions of the words in such registrations;
excerpts from publications containing references to "black
tail(s)" and "tail"; third-party registrations for adult
entertainment magazines; definitions from a slang
dictionary; and a copy of an adult entertainment magazine.
Opposition No. 99,058
6
Opposers also submitted a second notice of reliance as
part of their rebuttal testimony.3 Applicant objected to
this submission, stating that it was not proper rebuttal,
and should have been submitted by opposers as part of their
case-in-chief. The material in question consists of
definitions of "tail" taken from seven slang dictionaries,
as well as three standard dictionary definitions of "sex
object." In responding to applicant's objection, opposers
acknowledge that in their case-in-chief they did not submit
any excerpts from slang dictionaries. However, they assert
that such submissions are appropriate as part of their
rebuttal testimony because applicant, during its testimony
period, submitted an excerpt from a slang dictionary.
The slang dictionary excerpt submitted by applicant is
for the word "occupy," which had the meaning of "to take
sexual possession of a woman" in the 1400s-1600s.
Applicant's submission of this dictionary excerpt does not
open the door for opposers to submit any slang dictionary
definitions. Clearly if opposers wanted to use slang
dictionary definitions of "tail" to show this term has a
derogatory meaning, they should have done so as part of
their case-in-chief. Accordingly, these definitions will
not be considered. Similarly, because the definitions of
"sex object" appear to have been submitted as an explanation

3 The Board granted opposers' motion for leave to file a late
Opposition No. 99,058
7
of the slang dictionaries' definitions of "tail," they will
not be considered. Moreover, although the Board may take
judicial notice of dictionary definitions, see University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc.,
213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983), in this case we decline to do so. The
taking of judicial notice in these circumstances is
discretionary with the Board. See Litton Business Systems,
Inc. v. J.G. Furniture Company, Inc., 190 USPQ 431 (TTAB
1976), denying req. for recon., 190 USPQ 428 (TTAB 1976).
For the same reason that it would be unfair to applicant to
allow opposers to submit the dictionary definitions as part
of opposers' rebuttal testimony, at a point where applicant
has no opportunity to respond, it would be inappropriate for
the Board to consider what opposers failed to make of record
in the proper manner.
Both parties filed briefs on the case.4 An oral
hearing was not requested.

notice of reliance.
4 Although the Board had previously warned opposers that,
"having tested the limits of the Board's willingness to grant
extensions of time to brief a case," opposers would not be
granted an extension of time to file a reply brief, opposers
nonetheless, 27 days after their reply brief was due, moved to
reopen the briefing schedule so that the Board could consider
their accompanying brief. This motion was opposed by applicant,
which in turn filed a motion to strike the reply brief. The
Board denied opposers' motion to reopen proceedings to file a
reply brief because opposers had not established excusable
neglect, and because the brief, which was filed without prior
leave of the Board, exceeded the page limitation of Rule
Opposition No. 99,058
8
Although in the notice of opposition opposers alleged
that applicant's mark was not registrable on the grounds
that it is scandalous, disparaging and brings women and
particularly African-American women into contempt and
disrepute, in their brief opposers specifically state that
they are not pursuing this opposition insofar as it is based
on the scandalous nature of applicant's mark. Accordingly,
the only grounds for us to consider are whether applicant's
mark "consists of or comprises … matter which may disparage
… persons, living or dead, institutions, beliefs, or
national symbols, or bring them into contempt, or
disrepute…." Section 2(a) of the Trademark Act, 15, U.S.C.
1052(a).
The first question we must consider is whether opposers
have established their standing to pursue this opposition.
As noted, opposers have elected not to pursue the claim that
applicant's mark is scandalous. In terms of the claims that
the mark is disparaging or will bring persons into contempt
or disrepute, opposers alleged in their notice of opposition
that the use of the words BLACK TAIL as the name of adult
entertainment magazines disparages or brings into contempt
or disrepute women as a group, and in particular disparages
or brings into contempt or disrepute African American women.
The evidence shows that opposer Boswell is an African

2.128(b). Accordingly, opposers' reply brief has not been
Opposition No. 99,058
9
American woman. As a member of the group which is asserted
to be disparaged or brought into contempt or disrepute by
the mark BLACK TAIL, she has clearly demonstrated her
standing in this proceeding. See Ritchie v. Simpson, 170
F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Harjo v. Pro
Football Inc., 50 USPQ2d 1705 (TTAB 1999); Bromberg v.
Carmel Self Service, Inc., 198 USPQ 176 (TTAB 1978).
However, in the notice of opposition opposers do not
allege that the use of BLACK TAIL for adult entertainment
magazines disparages or brings into contempt or disrepute
white males, the group to which opposer Clement belongs.
Aside from the allegations of standing with respect to the
issue of whether the mark is scandalous (which ground has
been dropped by opposers), the only allegations relating to
opposer Clement's standing are the following:
¶ 38. As a member of said at present
majority community, he is concerned--out
of a sense of fairness and equity,
social ethics, belief in democracy, and
his own long range enlightened self-
interest in the maintenance of an
ethical and democratic society in the
United States--that the rights of the
members of every minority community be
respected in all matters.

¶ 39. Any objective observer of race
relations in the United States today
recognizes that violations of the rights
of members of the African American
community, and acts of disrespect to
members of said community by members of

considered.
Opposition No. 99,058
10
the majority community, are likely to
lead to (a) an antagonistic attitude on
the part of many members of the minority
community, (b) a sharpening of racial
bigotry on the part of any already
racially prejudiced members of the
majority community, (c) a worsening of
relations between the two communities,
and (d) in the worst case, violence
between members of the two communities.

In the recently decided case of Ritchie v. Simpson,
supra, the Federal Circuit discussed at some length the
elements necessary to assert an allegation of standing,
i.e., a belief that the plaintiff will suffer some kind of
damage if the mark is registered; a real interest in the
proceedings; and a reasonable basis for his belief of
damage. The Ritchie case is different from the one
presently before us, in that it involved a motion to dismiss
the claim of scandalousness in view of a lack of a
sufficient pleading of standing. In deciding such a motion,
the Court had to accept as true all well-pled and material
allegations of the complaint, and construe the complaint in
favor of the complaining party. See Jewelers Vigilance
Committee, Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d
2021 (Fed. Cir. 1987). However, the Court pointed out that
a plaintiff's "allegations alone do not conclusively
establish standing. If challenged, the facts alleged which
establish standing are part of the [plaintiff's] case, and,
as we said in Lipton [Industries, Inc. v. Ralston Purina
Opposition No. 99,058
11
Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982)], must be
affirmatively proved." Ritchie at 50 USPQ2d 1029. Thus,
the inquiry in the present case is whether opposer Clement
has proven his standing, not whether his allegations of
standing in the notice of opposition would be sufficient for
the proceeding to go forward to trial.
In considering the issue of standing, we do not reach
the question of whether, in a proceeding brought on the
grounds of disparagement or bringing into contempt, a person
who is not a member of the group alleged to be disparaged or
brought into contempt can ever establish standing to object
to a mark. Rather, we look only to Mr. Clement's own
assessment of how he believes he is damaged, as set forth in
paragraphs 38 and 39 of the notice of opposition, and the
evidence which he has submitted in support thereof.
The only evidence related to Mr. Clement's standing is
his affidavit testimony that he is a white male with
children and grandchildren, and that he believes that he
would be damaged by the registration of applicant's mark for
adult entertainment magazines. He has not, however,
submitted any evidence with respect to the allegations in
the notice of opposition with respect to his own standing.
In their brief, opposers state that a proper purpose of
Section 2(a) is to "assure that the rights of the members of
every minority community, including the black community, be
Opposition No. 99,058
12
respected," p. 4. Clearly opposer Clement is not a member
of the black or other minority community; the allegations in
the notice of opposition state just the opposite. The only
argument with respect to Mr. Clement's interest is the mere
statement in the brief that he would suffer if there were a
worsening in relations between the majority and the minority
community.5 However, he has not provided any evidence in
support of this claim. Instead, he asks, in the brief, that
the Board take judicial notice
of the fact that violations of the
rights of members of the African
American community, and acts of
disrespect to members of said community,
by members of the majority community are
likely to lead to (a) an antagonistic
attitude on the part of many members of
the minority community, (b) a sharpening
of racial bigotry on the part of already
racially prejudiced members of the
majority community, (c) a worsening of
relations between the two communities
and (d) in the worst case, violence
between members of the two communities.

Essentially opposer Clement asks us to take judicial
notice of the allegations pleaded in paragraph 39 of the
notice of opposition. We decline to do so. We do not
believe that these statements are appropriate matter for
judicial notice. Rule 201 of the Federal Rules of Evidence

5 Mr. Clement also states that his wife, children and
grandchildren would suffer the possible consequences of the
worsening of race relations. As the Board noted in its
October 8, 1996 action, the allegations in the notice of
opposition referring to damage to parties other than the opposers
are improper and would be given no consideration.
Opposition No. 99,058
13
provides that "a judicially noticed fact must be one not
subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned." The Advisory Committee notes
regarding the rule comment that "the usual method of
establishing adjudicative facts is through the introduction
of evidence, ordinarily consisting of the testimony of
witnesses. If particular facts are outside the area of
reasonable controversy, this process is dispensed with as
unnecessary. A high degree of indisputability is the
essential prerequisite."
The statements of which opposer Clement would have us
take judicial notice are argument and speculation, rather
than facts with "a high degree of indisputability" or
"capable of ready determination by resort to sources whose
accuracy cannot reasonably be questioned."
Accordingly, because opposer Clement has failed to
establish facts on which he could base a reasonable belief
that he would be damaged by applicant's registration of
BLACK TAIL for adult entertainment magazines, we find that
he has no standing in this proceeding.

Opposition No. 99,058
14
This brings us to the substantive issue, whether
opposer Boswell has shown that the applied-for mark may be
disparaging to women, particularly African-American women,
or bring them into contempt or disrepute.6 With respect to
the ground of disparagement, opposers have, in their brief,
devised a three-part method for analyzing whether a mark
consists of disparaging matter, and then have gone about
trying to prove that BLACK TAIL is disparaging under this
test. However, the Board will follow the judicially-
established test set forth in Harjo v. Pro Football Inc., 50
USPQ2d 1705 (TTAB 1999). The Board in Harjo made an
exhaustive analysis of the cases involving both scandalous
and disparaging marks, and determined that the question of
disparagement must be considered in relation to the goods or
services identified by the mark in the context of the
marketplace. Id. at 1738. Further, to the extent the
matter in question is found to refer to an identifiable
person or persons, in deciding whether the matter may be
disparaging we must look to the views of the referenced
group, as shown by the views of a substantial composite
thereof. Id. at 1739. Thus, the Board in that case
identified a two-step process, which requires that we first

6 Even if it were found that opposer Clement had established
standing, the record and brief submitted by opposers applies to
both of them. Accordingly, our finding in this case with respect
to opposer Boswell would be equally applicable to opposer
Clement.
Opposition No. 99,058
15
ask what is the meaning of the matter in question, and,
second, whether that meaning may be disparaging, i.e.,
whether the mark may dishonor by comparison with what is
inferior, or slight, deprecate, degrade, or affect or injure
by unjust comparison. Id. at 1738. Because the notice of
opposition and the arguments in opposers' brief assert that
the mark BLACK TAIL disparages women in general, and African
American women in particular, in deciding whether the mark
may be disparaging, we must look to the views of the
referenced group, and not to American society as a whole.
Id. at 1739.
It seems appropriate to recite some of the history of
this application at this point. During the ex parte
examination of the application, it was refused registration
on the ground that the mark consists of immoral or
scandalous matter. Applicant appealed that refusal, and the
refusal was affirmed by this Board, with one member of the
panel dissenting, in an unpublished decision issued in 1993.
Subsequently, our primary reviewing court, the Court of
Appeals for the Federal Circuit, reversed the Board's
decision, in In re Mavety Media Group Ltd., 33 F.3d 1367, 31
USPQ2d 1923 (Fed. Cir. 1994).
The Court criticized the Board's majority decision on a
number of points. In particular, the Court found error in

Opposition No. 99,058
16
the Board's reliance on dictionary sources which bore the
editorial comment "usually considered vulgar" as the sole
basis for finding that BLACK TAIL was scandalous as applied
to adult entertainment magazines. The Court specifically
declined to determine whether a standard dictionary
definition with an accompanying editorial designation of
vulgarity alone was sufficient to demonstrate that a
substantial composite of the general public considers that
word to be scandalous, such that it would be unregistrable
under Section 2(a). What the Court did say was that, in
addition to the vulgar definitions of "tail," the dictionary
excerpts of record in the case also set forth non-vulgar
definitions of "tail" in the context of an adult
entertainment magazine.
In view of the existence of such an
alternate, non-vulgar definition, the
Board, without more, erred in concluding
that in the context of the adult
entertainment magazine, the substantial
composite of the general public would
necessarily attach to the mark BLACK
TAIL the vulgar meaning of "tail" as a
female sexual partner, rather than the
admittedly non-vulgar meaning of "tail"
as a rear end.

Id. at 31 USPQ2d 1928.

Although the issue before the Federal Circuit was
whether BLACK TAIL was scandalous, within the provisions of
Section 2(a), as applied to adult entertainment magazines,
many of the comments made by the Court in that decision are
Opposition No. 99,058
17
applicable to the present case. See Harjo v. Pro-Football
Inc., supra at 1738, stating that the issue of disparagement
is related to the issue of scandalousness. As we noted
above, the Court in the decision on applicant's ex parte
appeal found that dictionary definitions were not sufficient
to prove that a substantial composite of the public would
regard BLACK TAIL as scandalous, and applauded the practice
of the Board in other cases involving the issue of
scandalousness to allow marks to be published so that "if a
group does find the mark to be scandalous…, an opposition
proceeding can be brought and a more complete record can be
established." In re Mavety Media Group Ltd., supra at 31
USPQ2d 1928, quoting In re In Over Our Heads Inc., 16 USPQ2d
1653, 1654-55 (TTAB 1990).
Despite the comments by the Court, opposers have chosen
to submit as evidence in their case only dictionary
definitions of the word "tail" and adult entertainment
magazines. Opposers recognize that other evidence could
have been submitted, in particular, "testimony of linguistic
experts" and "the results of properly conducted public
opinion surveys." Brief, p. 9. They contend, however, that
persons opposing the registration of disparaging marks
should not be forced to assume the cost of surveys.7 In any

7 Opposers also disagree with the comments made by the Court in
Mavety which suggest that the Patent and Trademark Office submit
Opposition No. 99,058
18
event, opposers assert that the present case is different
from the appellate case because it involves the issue of
whether BLACK TAIL is disparaging, rather than whether it is
scandalous.
We cannot agree with opposers that the comments made by
the Federal Circuit in Mavety have no application to the
issue in this case. In both cases, the question to be
determined is public reaction; in the case of scandalous
marks, the relevant group is a "substantial composite of the
general public," while in the case of disparaging marks it
is the group which is asserted to be disparaged, which may
be reasonably determined by the views of a substantial
composite thereof. Harjo v. Pro-Football Inc., supra at
1739. We do agree with opposers to the extent that a party
bringing a proceeding on the ground of disparagement should
not be required to conduct a survey, particularly since a
party with a real commercial interest in a mark is not
required to conduct a survey to prove likelihood of
confusion in a proceeding before the Board. See Hilson
Research Inc. v. Society for Human Resource Management, 27
USPQ2d 1423 (TTAB 1993). However, this does not mean that

consumer surveys to prove a mark is scandalous. It is opposers'
position that the PTO should not be forced to conduct opinion
surveys; and that the primary responsibility for monitoring cases
like the present one should be kept in the PTO, rather than
relying on the public to prevent the registration of scandalous
marks.

Opposition No. 99,058
19
such a plaintiff is absolved from the requirement to show
that the allegedly disparaged group views the mark at issue
to contain or comprise disparaging matter.
This brings us to a consideration of the evidence
submitted by opposers. The relevant dictionary definitions
of "tail," as highlighted by opposers, are as follows:
17. Plural. A. A formal evening costume
worn by men.
18. Vulgar Slang. The female pudendum.
19. Vulgar Slang. A female regarded as a
sexual object.8
***
6. tails. a. See tail coat. … c. men's
full-dress attire.
7. Slang. The buttocks or rump.
10. Slang (vulgar). a. coitus. b. a
woman considered as a sexual object.9
***
18. tails. a. A formal evening costume
typically worn by men.
19. a. Slang. The buttocks. b. Vulgar
Slang. A sexual partner, especially a
woman or girl.10
***
3(d) colloq. in pl., a tailcoat; …
4a The buttocks….
b The external genitals, esp. of a woman
c Orig., a prostitute. Later, women
collectively regarded as a means of male
sexual gratification; sexual
intercourse; (freq. In piece of tail
s.v. PIECE n). coarse slang.11
***
d. slang. …(ii) women regarded
collectively (by men) as a means of
sexual gratification; sexual

8 The Illustrated Heritage Dictionary and Information Book, ©
1977.
9 Random House Unabridged Dictionary, 2d ed. © 1993.
10 The American Heritage Dictionary of the English Language, 3d
ed. © 1992.
11 The New Shorter Oxford English Dictionary on Historical
Principles, Vol. 2, © 1993.
Opposition No. 99,058
20
intercourse; a sexual partner. Freq. In
phr. A piece (or bit) of tail.12
***
4. tails pl a: TAILCOAT b: full evening
dress for men (came downstairs
resplendent in ~s and white tie--Joseph
Wechsberg
5a: BUTTOCKS b slang:
SEXUAL INTERCOURSE--usu. considered
vulgar13
***
4 pl a: TAILCOAT
5. b: a female sexual partner--usu.
considered vulgar14

The adult entertainment magazines present graphic
photographs of nude and scantily clad women in suggestive
and explicit poses. One of these magazines is the May 1997
issue of applicant's magazine sold under the trademark at
issue here, BLACK TAIL.
Opposers point to four vulgar meanings of the word
"tail," namely, a female sex partner, the female genitalia,
sexual intercourse, and a female sex object. In addition to
this evidence, opposers argue in their brief that the Board
should take judicial notice, based on "common experience,"
of "dirty talk" that is used when only males are present.15

12 The Oxford English Dictionary, 2d ed. © 1989.
13 Webster's Third New International Dictionary of the English
Language, unabridged, © 1986.
14 Webster's Ninth New Collegiate Dictionary, © 1984.
15 To quote opposers, "As a result of such experiences, the
meaning of many crude and vulgar words have become matters of
common knowledge during the period when males are growing up (and
frequently extending into adult life) through male street talk,
factory talk, job site talk, locker room talk, dormitory and
fraternity talk, armed forces talk, and the like. All but those
males who have led relatively sheltered lives have heard--and
Opposition No. 99,058
21
Opposers provide examples of the kinds of statements which
may be made with "tail" having a vulgar meaning.
We decline to take judicial notice of these so-called
common experiences which purportedly show that the word
"tail" is used in a vulgar manner. Certainly the
experiences that opposers refer to in their brief do not
constitute the kinds of indisputable facts that are
contemplated by Rule 201 of the Federal Rules of Evidence,
as discussed supra. Even opposers acknowledge the shakiness
of such position, recognizing that
most female judges, and perhaps a few
male judges as well, have not shared the
experience at various times of hearing
the word TAIL used in the crude, vulgar
and disparaging way just discussed.
This may lead to a reluctance on the
part of some judges to take judicial
notice of this type of common
experience.
Brief, p. 14.

If opposers had wanted to make evidence of this kind of
word usage of record, she could easily have done so through
testimony. (If this type of locker room talk is as
pervasive as opposers indicate, it would seem that there
would be no shortage of witnesses.) However, opposers have
elected to try to prove that BLACK TAIL is disparaging
solely on the basis of dictionary definitions and ten adult
entertainment magazines. In effect, we have in this record

have understood--such comments as 'I'm going to get me some tail
tonight!' or 'How's about a little tail?'" Brief, p. 13.
Opposition No. 99,058
22
essentially the same evidence that was before the Board and
the Court in the ex parte appeal.
As the Court said in Mavety, and as the present record
shows, the word "tail" can have a variety of meanings as
applied to an adult entertainment magazine. In particular,
the dictionary definitions show that "tail" can mean
"buttocks," and there is no indication from the dictionary
definitions that such a meaning would be considered vulgar.
Having reviewed the issue of BLACK TAIL magazine which
is of record herein, we find it difficult to believe that
anyone, seeing the mark used for such a publication, would
consider the phrase to refer simply to buttocks. The
photographs in the publication are photographs of nude and
scantily-clad African-American women, and while many of the
photographs feature the rear ends of these women, a large
number feature their breasts and genitalia, often showing
the women using their fingers to further expose themselves.
However, our principal reviewing Court stated quite clearly
in Mavety that, in view of the existence of an alternate,
non-vulgar definition of "tail," the Board, without more,
erred in concluding that in the context of an adult
entertainment magazine, a substantial composite of the
general public would necessarily attach to the mark BLACK
TAIL the vulgar meaning of "tail" as a female sexual

Opposition No. 99,058
23
partner, rather than the admittedly non-vulgar meaning of
"tail" as rear end. 31 USPQ2d 16 1928. Given that opposers
have not provided any further evidence as to the meaning of
"tail" than was present before the Court during the appeal,
we cannot conclude that it is the vulgar meaning that the
relevant public would attach to the mark, nor can the Board
substitute its own judgment for that of the perspective of
the relevant public.
We would also add that opposers have provided no
evidence, beyond the dictionary definitions themselves, that
women in general, or African American women in particular,
believe themselves to be disparaged by the use of BLACK
TAIL. Even in her affidavit Ms. Boswell testified only that
she believed herself to be damaged by the registration of
applicant's mark; she provided no testimony as to what the
mark indicated to her personally, or why she felt it was
disparaging. Nor did opposers supply any evidence with
respect to the views of other women. Compare Ritchie v.
Simpson, supra, in which opposer alleged that he had
obtained petitions signed by people from all over the United
States who agree with him that the marks at issue are
scandalous; Harjo v. Pro-Football Inc., supra, referring to
a broad range of evidence, including testimony by several
witnesses.
Opposition No. 99,058
24
In view of the lack of evidence as to the perception of
BLACK TAIL for adult entertainment magazines by the
assertedly disparaged group, we cannot find that opposers
have proved that the mark is disparaging within the meaning
of Section 2(a) of the Trademark Act.
With respect to the ground that applicant's mark may
bring women and particularly African-American women into
contempt or disrepute, the same standards for determining
whether matter in a mark may be disparaging are applicable
to determining whether such matter brings "person, living or
dead, institutions, beliefs, or national symbols into
contempt or disrepute. Harjo v. Pro-Football Inc., supra.
Opposers appear to concede this point, because they do not
discuss this ground separately, but specifically states in
their brief that the single word "disparaging" is used
throughout the brief as the equivalent of the statutory
language in Section 2(a) that refers to "matter which may
disparage ... any person, living or dead, ... or bring them
into contempt or disrepute." For the same reasons which we
have found opposers to have failed to prove that BLACK TAIL
used on adult entertainment magazines may be disparaging, we
find they have failed to prove that it may bring women, and
particularly African-American women, into contempt or
disrepute.
Opposition No. 99,058
25
Finally, for the sake of completeness, applicant's
affirmative defense that Section 2(a) is unconstitutional is
rejected for the reasons given by the Court in Mavety, 31
USPQ2d at 1928. See also, In re International Flavors &
Fragrances, Inc., __F.3d__, __USPQ2d__ (Fed. Cir. July 20,
1999).
Decision: The opposition is dismissed.

R. F. Cissel

E. J. Seeherman

G. D. Hohein
Administrative Trademark Judges
Trademark Trial and Appeal Board