Nebraska Firm Bests Oklahoma Firm in 2(d) Fracas over "FS" Logos for Legal Services

Omaha-based Fraser Stryker Meusey Olson Boyer & Block, P.C. came out on top in its Section 2(d) opposition to registration of the FS logo shown immediately below on the left, owned by the Oklahoma City law firm of Fellers, Snider, Blankenship, Bailey & Tippens, P.C. The Board found Applicant's mark likely to cause confusion with Opposer's previously used FS mark shown on the right, both for legal services. Fraser Stryker Meusey Olson Boyer & Block, P.C. v. Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Opposition No. 91166088 (June 25, 2007) [not precedential].


Opposer Fraser Stryker Meusey Olson Boyer & Block, P.C. established prior use as of 1990, rendering its services in Colorado, Iowa, and Nebraska. Applicant Fellers, Snider, Blankenship, Bailey & Tippens, P.C. argued that "the practice of law in the United States is jurisdictional by nature and governed by jurisdictional licensing requirements," thereby preventing competition in the legal marketplace and hence precluding confusion. The Board was not moved.

"Because applicant is seeking a geographically unrestricted registration, we are required to evaluate the du Pont likelihood of confusion factors in terms of nationwide markets. This requirement is not eliminated by the fact that lawyers are licensed by state bar associations."

The Board noted that "the fact that the parties may not currently be in actual competition at this time is not relevant to our analysis."

photo from Opposer's website
Applicant Fellers, Snider, Blankenship, Bailey & Tippens, P.C. also contended that the marks look different and that the addition of the name "Fellers, Snider, Blankenship, Bailey & Tippens, P.C." further distinguishes the mark by specifying the source of Applicant's services. Again, the Board was not impressed:

"The problem with applicant's argument is that the issue in a likelihood of confusion case is not whether people will confuse the marks but whether the marks will confuse people."

In a side-by-side comparison of the marks, Applicant Fellers, Snider, Blankenship, Bailey & Tippens, P.C. would be correct. But otherwise, "applicant's names may increase the likelihood of confusion when opposer's mark is encountered separately because clients or potential clients may mistakenly associate opposer's FS logo with applicant or assume that the legal services have a common source."

photo from Applicant's website
As we know, when the services are identical, the similarity between marks that is necessary to establish a likelihood of confusion is decreased. Here, the Board concluded, the similarities outweigh the differences and confusion is likely.

Text Copyright John L. Welch 2007.