Jacques Bogart Int’l. B.V.v.Bogart, Inc.

Trademark Trial and Appeal Board

May 2, 1997

OPP (T.T.A.B. May. 2, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB May 2, 1997
Paper No. 25
GDH/gdh
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Jacques Bogart International B.V.
v.
Bogart, Inc.
_____
Opposition No. 89,502 to application Serial No. 74/136,378
filed on February 4, 1991
_____
Neil F. Greenblum and Bonnie G. Klein of Greenblum & Berstein,
P.L.C. for Jacques Bogart International B.V.
Edward H. Rosenthal and Evan M. Gsell of Frankfurt, Garbus, Klein
& Selz for Bogart, Inc.
______
Before Cissel, Quinn and Hohein, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
Bogart, Inc. has filed an application to register the
mark "HUMPHREY BOGART" for "deodorants, perfumes, body soaps,
facial soaps, cosmetics, namely, rouge, mascara, eye shadow,
eyeliner, face-powder, and make-up base, and hair lotions,
Opposition No. 89,502
2
namely, shampoos, hair conditioners, hair wave lotions, hair
mousse, hair gel and hair spray".1
Jacques Bogart International B.V. has opposed
registration on the ground that applicant's mark, when applied to
applicant's goods, so resembles the mark "BOGART," which opposer
has previously registered for "perfumes, toilet water, toilet
soaps, deodorants for personal use, face, skin and body lotions
and aftershave lotions,"2 as to be likely to cause confusion,
mistake or deception.
Applicant, other than admitting that it seeks
registration of its mark for the goods listed in the opposed
application, has denied in its answer the allegations set forth
in the notice of opposition.
The record consists solely of the pleadings and the
file of the opposed application. Neither party took testimony or
introduced any other evidence.3 Briefs4 have been filed,5 but an
oral hearing was not requested.

1 Ser. No. 74/136,378, filed on February 4, 1991, which alleges a
bona fide intention to use the mark in commerce.
2 Reg. No. 1,423,521, issued on January 6, 1987, which sets forth a
date of first use anywhere of September 1975 and a date of first use
in commerce of April 1976; combined affidavit §§8 and 15.
3 We note, in this regard, that opposer has failed to utilize any of
the various means for making its pleaded registration properly of
record in this proceeding. In particular, as indicated in TBMP
§703.02(a), a party pleading ownership of a subsisting federal
registration may properly make such registration of record by (i)
filing with its notice of opposition two copies of the registration
which have been prepared and issued by the Patent & Trademark Office
("PTO") and which show both the current status of and current title
to the registration; (ii) filing a notice of reliance, during the
party's testimony period for its case-in-chief, on an accompanying
copy of the registration which has been prepared and issued by the
PTO and which shows both the current status of and current title to
Opposition No. 89,502
3

the registration; (iii) introducing a copy of the registration,
during the party's testimony period for its case-in-chief, as an
exhibit to the testimony of a witness who has knowledge of the
current status of and title to the registration and who thus can
establish that the registration is still subsisting and is owned by
the offering party; or (iv) having the adverse party stipulate to
such facts. See Trademark Rules 2.122(d)(1), 2.122(d)(2) and
2.123(b).
4 Opposer's consented request to file "a complete [initial] brief
with a Table of Contents and Table of Authorities" is approved.
5 Although not made of record at trial, opposer with its initial
brief has submitted and refers therein to three exhibits consisting
of a plain copy of its pleaded registration, a plain copy of the
PTO's acknowledgment of the §§8 and 15 affidavit submitted in
connection with the registration, and a copy of the results from a
search opposer conducted (after the close of its initial testimony
period) utilizing the "Dialog Information Services" database.
Opposer, in its initial brief, has also requested that the Board
"take judicial notice of the common usage of the words 'Bogie' and
'Bogart' to refer to the late actor Humphrey Bogart." Applicant, in
its brief, has essentially objected thereto, correctly observing that
"there are no facts of record which prove any grounds for sustaining
this opposition" and that opposer "is asking the Board to assume
facts not in the record." The assertion by opposer to the contrary
in its reply brief is plainly in error for the reasons explained
below.
As stated in TBMP §705.02, "[e]xhibits and other evidentiary
materials attached to a party's brief on the case can be given no
consideration unless they were properly made of record during the
time for taking testimony." Consequently, as set forth in TBMP
§706.02, the "[f]actual statements made in a party's brief on the
case can be given no consideration unless they are supported by
evidence properly introduced at trial." Here, as previously pointed
out, opposer simply failed to make the evidentiary materials attached
to its initial brief of record during the testimony period assigned
for presenting its case-in-chief. The arguments in its briefs
concerning its mark and goods are thus unsupported.
Moreover, as to opposer's request that the Board take judicial
notice, such may properly be done only of a fact which, as provided
in Fed. R. Evid. 201(b), is "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." Since neither category is considered applicable in
this case, opposer's request that the Board take judicial notice that
the late actor Humphrey Bogart is commonly referred to as "Bogie" and
"Bogart" is denied. Fed. R. Evid. 201(c) and 201(d), and TBMP
§§712.01, 712.02 and 712.03. In any event, it should be pointed out
that even if we were to exercise our discretion and take such notice,
Opposition No. 89,502
4
Inasmuch as the issues to be determined in this
proceeding, in light of the denials in applicant's answer, are
priority and likelihood of confusion, and since opposer, having
the burden of proof, has offered no properly admissible evidence
to prove its case, it is accordingly adjudged that the opposition
must fail.
Decision: The opposition is dismissed.
R. F. Cissel
T. J. Quinn
G. D. Hohein
Administrative Trademark Judges,
Trademark Trial and Appeal Board

or if opposer had supplied the Board with the necessary source of
information from which it would be mandatory that we do so, it would
make no difference in the outcome of this opposition because the
materials accompanying opposer's initial brief, as explained above,
are not properly of record and thus simply cannot be given any
evidentiary consideration.