(dissenting).
While I believe my learned brothers have correctly stated the law in the majority opinion, I cannot bring myself to agree with the -result reached by them in this case. To my mind, an affirmance of the instant case would accord with the rule that a summary judgment is appropriate “where the moving party is entitled to judgment as a matter of law, where it is *219quite clear what the truth is, (and) that no genuine issue remains for trial”. See American Ins. Co. v. Gentile Bros. Co., 5 Cir., 109 F.2d 732, 735; Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; Farrall v. District of Columbia Amateur Athletic Union, 80 U.S.App.D.C. 396, 153 F.2d 647.
Appellants could never attain any right to the exclusive use of the word “Bama”, for it is common knowledge that such is the generally used and accepted nickname for the State of Alabama. As such, it has merely geographical and descriptive significance, and is incapable of being exclusively appropriated to the use of anyone. See Elgin National Watch Co. v. Illinois Watch Case Co., 179 U.S. 665, 21 S.Ct. 270, 45 L.Ed. 365; American Wine Co. v. Kohlman, 5 Cir., 158 F. 830. The geographical significance of the term, “Bama”, would certainly seem proper matter for judicial notice, under the rule that “courts will take notice of whatever matters are known, or ought to be generally known, within the limits of their jurisdiction, upon the theory that justice does not require that courts be more ignorant than the rest of mankind.” Amer.Jur., Evidence, Vol. 20, p. 48. It undoubtedly satisfies the requirements of the rule as being matter of common and general knowledge; well and authoritatively settled as opposed to doubtful and uncertain; and it is so known and recognized within the limits of the jurisdiction of the court. Amer.Jur., Vol. 20, p. 48, p. 51.
I believe this case should be affirmed because there is no genuine issue presented as to any material fact, and the defendants were therefore entitled to summary judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U. S.C.A. I cannot conceive of a trial on the merits of this complaint, no matter how full or fair, which could logically lead to any different result than that reached by the district court, for to my way of thinking the lack of a genuine issue for trial is readily apparent from the pleadings. The charges of bad faith, unfair competition and perfidious dealings as set forth in the complaint are wholly lacking in legal substance and foundation in view of the admitted fact that defendants are engaged in a completely different type business from that of plaintiffs from which no actual unfair competition of the character alleged could legally ensue. Moreover, any showing which plaintiffs might make upon a trial to the effect that the word “Bama” had acquired a secondary meaning in their favor, if any such showing could be made, manifestly could not enlarge a right to the exclusive use of the term which did not theretofore exist.
I conclude solely as a matter of law that in view of the numerous other registrations of the word “Bama” for commercial purposes and its many known trade uses to the public at large, any elements of originality and distinctiveness which may have ever adhered to the expression have long since been lost. I would affirm the judgment, and I therefore respectfully dissent.