Fort Worth Brain & Spine Institute, L.L.P. v. Fort Worth Brain and Spine Institute, PA

This Opinion is Not a
Precedent of the TTAB
Mailed: September 23, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Fort Worth Brain & Spine Institute, L.L.P.
v.
Fort Worth Brain and Spine Institute, PA
_____
Opposition No. 91268880
_____
Alfonso Chan, Halima Ndai, and Raphael Chabaneix of Cahill Gordon & Reindel
LLP and Mu Lin Hsu of King & Spalding LLP for Fort Worth Brain & Spine
Institute, L.L.P.
Hugh G. Connor II, Michael D. Anderson, and Jack W. Delaney of Kelly Hart &
Hallman LLP for Fort Worth Brain and Spine Institute, PA.
_____
Before Larkin, Stanley, and Brock,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
The caption of this case gives the game away: Dueling doctors dispute the
ownership of the service mark FORT WORTH BRAIN & SPINE INSTITUTE and the
right to register it for various medical services. But in an unusual twist, one of the
dueling doctors is a principal of the parties on both sides of the caption.

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At the bottom of the caption is Fort Worth Brain and Spine Institute, PA
(“Applicant”), which is identified in the opposed application as a Texas partnership
whose address is 1900 Mistletoe Blvd., Suite 200, Fort Worth, Texas 76104, and
whose general and sole partner is identified as Thomas Ellis, M.D. Applicant applied
in 2020 to register the standard-character mark FORT WORTH BRAIN & SPINE
INSTITUTE for “Medical care; Medical consultations; Medical counseling; Medical
services; Surgery; Orthopaedic surgery services; Orthopedic surgery services” in
International Class 44, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a),
based on claimed first use of the mark anywhere and first use of the mark in
commerce since at least as early as February 19, 2002.1
At the top of the caption is Fort Worth Brain & Spine Institute, L.L.P. (“Opposer”),
which alleges in its Notice of Opposition that it is a Texas limited liability partnership
whose address as of the filing date of the opposition was also 1900 Mistletoe Blvd.,
Suite 200, Fort Worth, Texas 76104. 1 TTABVUE 3. Opposer’s Notice of Opposition
further alleges that its multiple partners are doctors, including Dr. Ellis, through
their respective professional associations. Id.
Opposer’s Notice of Opposition pleads three grounds for opposition: (1) fraud in
the procurement of a registration, (2) no bona fide use in commerce by Applicant prior
1 Application Serial No. 88932841 was filed on May 26, 2020. Applicant has disclaimed the
exclusive right to use BRAIN & SPINE INSTITUTE apart from the mark as shown, and
seeks registration of the mark in its entirety based on acquired distinctiveness under Section
2(f) of the Trademark Act, 15 U.S.C. § 1052(f). Applicant moved early in the opposition to
amend its application to correct its listed entity type and its claimed dates of first use. 7
TTABVUE 1-8. The Board deferred decision on that motion until final decision, 9 TTABVUE
1-2; 20 TTABVUE 10-11, and we decide it below.

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to the filing date of the opposed use-based application, and (3) Applicant’s lack of
ownership of the applied-for mark. Id. at 7-10. Opposer pursued only the latter two
claims at trial. 63 TTABVUE 14. Opposer did not pursue its fraud claim, and thus
forfeited it. Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., No.
92079409, 2024 WL 3739358, at *1 n. 4 (TTAB 2024) (citation omitted).
Applicant acknowledges in its answer and discovery responses that the FORT
WORTH BRAIN & SPINE INSTITUTE mark has been used for the services
identified in the application only by Opposer, and never by Applicant, but Applicant
asserts its ownership of and right to register the mark based on its allegation that
Opposer has always been Applicant’s licensee under an oral license, such that
Opposer’s use of the mark has always inured to Applicant’s benefit. Whether the
claimed oral license exists is the key issue in the case.
The case is fully briefed.2 We sustain the opposition on both claims.
I. The Record
The record consists of the pleadings,3 the file history of the opposed application,
by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following
materials submitted by the parties:
2 Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the
page(s) of the docket entry where the cited materials appear. Opposer’s main brief appears
at 63 TTABVUE and its reply brief appears at 69 TTABVUE. Applicant’s brief appears at 66
TTABVUE.
3 The operative pleadings are Opposer’s Notice of Opposition, 1 TTABVUE, and, by leave of
the Board, 20 TTABVUE 8, Applicant’s Amended Answer to Notice of Opposition, 12
TTABVUE 7-25. As discussed below, in its Amended Answer, Applicant admitted a number

Opposition No. 91268880
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Opposer
• First Notice of Reliance on Discovery Responses, 33 TTABVUE 1-26;
• Second Notice of Reliance on Official Records, 34 TTABVUE 1-83;
• Cross-Examination Testimony of Dr. Richard O. Hubbard, one of
Applicant’s trial witnesses, and Exhibits 1-5 thereto, submitted during
Opposer’s rebuttal period, 45 TTABVUE 1-105;
• Declaration of Dr. Abdolreza Siadati, and Exhibit A thereto, submitted
during Opposer’s rebuttal period, 46 TTABVUE 1-58;4
• Declaration of Dr. Samir B. Lapsiwala, and Exhibit A thereto, submitted
during Opposer’s rebuttal period, 47 TTABVUE 1-57;
• Declaration of Dr. Anthony W. Lee, and Exhibit A thereto, submitted
during Opposer’s rebuttal period, 48 TTABVUE 1-57;
• Declaration of Dr. Brent T. Alford, and Exhibit A thereto, submitted during
Opposer’s rebuttal period, 49 TTABVUE 1-58;
• Third Notice of Reliance on Official Records, submitted during Opposer’s
rebuttal period, 50 TTABVUE 1-56; and
• Fourth Notice of Reliance on Discovery Responses, submitted during
Opposer’s rebuttal period, 51 TTABVUE 1-25.
Applicant
• Notice of Reliance on Excerpts of Discovery Depositions of Opposer’s
rebuttal witnesses, 35 TTABVUE 1-51;
• Notice of Reliance on Official Records, 36 TTABVUE 1-28;
• Notice of Reliance on Discovery Responses, 37 TTABVUE 1-50; 38
TTABVUE 1-25;
of Opposer’s allegations, and interposed affirmative defenses, including priority, estoppel,
and licensee estoppel. Id. at 21-23.
4 This declaration, and the three other declarations submitted by Opposer during its rebuttal
period, are the subject of a motion to strike by Applicant. 52 TTABVUE 1-405. The Board
deferred decision on that motion until final decision, 55 TTABVUE 1-5, and we decide it
below.

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• Testimony Affidavit of Dr. Ellis, and Exhibits A-I thereto, 39 TTABVUE 1-
142;
• Second Notice of Reliance on Official Records, 40 TTABVUE 1-9; and
• Testimony Affidavit of Dr. Hubbard, 41 TTABVUE 1-3.
II. Preliminary and Evidentiary Issues
A. Applicant’s Motion to Amend Its Application
As noted above, Applicant moved to amend its application to correct the
identification of its entity type from a Texas partnership to a Texas professional
association, as reflected in Applicant’s name, 7 TTABVUE 2-3, to delete Applicant’s
identified assumed names, and to change its claimed dates of first use anywhere and
first use in commerce from at least as early as February 19, 2002 to at least as early
as May 31, 2003. Id. at 3-4. Opposer did not consent to the motion, but did not oppose
it.
Trademark Rule 2.71(c)(1) provides that an applicant
may amend the dates of use, provided that the amendment
is verified, except that the following amendments are not
permitted: . . . In an application under section 1(a) of the
Act, the applicant may not amend the application to specify
a date of use that is subsequent to the filing date of the
application . . . .
37 C.F.R. § 2.71(c)(1). Applicant’s requested amendments to its dates of use do not
assert dates that are subsequent to the May 26, 2020 filing date of its application.
Trademark Rule 2.71(d) provides that an “applicant may amend the application
to correct the name of the applicant, if there is a mistake in the manner in which the

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name of the applicant is set out in the application,” but the “amendment must be
verified.” 37 C.F.R. § 2.71(d).
Applicant provided the verifications required under Trademark Rules 2.71(c) and
(d) in the form of a declaration of Dr. Ellis. 7 TTABVUE 7-8. Accordingly, we grant
Applicant’s unopposed motion to amend its application, which is hereby deemed
amended to identify Applicant as a Texas professional association and to claim first
use of the mark anywhere and first use of the mark in commerce at least as early as
May 31, 2003.
B. Applicant’s Motion to Strike Opposer’s Rebuttal Declarations in
Their Entireties
As noted above, Applicant moved after the close of Opposer’s rebuttal period to
exclude Opposer’s rebuttal declarations of Drs. Siadati, Lapsiwala, Lee, and Alford
because “[d]uring Opposer’s trial period, which ended on October 23, 2024, Opposer
did not submit any trial testimony,” but instead submitted the declarations as
“rebuttal trial-testimony.” 52 TTABVUE 2.5
In deferring the decision on Applicant’s motion to strike, the Board ordered that
“Applicant should renew its deferred objections in its trial brief on the case.” 55
TTABVUE 3. Applicant purported to “incorporate[ ] those objections into [its] brief
that the Board considered substantive and deferred until final decision,” 66
TTABVUE 18, but argued in the alternative that “[t]o the extent Applicant may not
5 Applicant’s motion to strike contains more than 400 pages. 52 TTABVUE 1-405. More than
half of those pages consist of the objected-to declarations and exhibits themselves, which were
already in the record and obviously did not need to be resubmitted. Id. at 12-231 (declarations
of Drs. Siadati, Lee, Lapsiwalla, and Alford).

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incorporate those objections into this brief, Applicant hereby objects to certain
testimony and evidence offered by Opposer as follows . . . .” Id.
Opposer argues in its reply brief that
Applicant attempts to incorporate by reference its prior
motion to strike. . . . This is improper. The Board ordered
Applicant to renew deferred objections in its trial brief, in
[an] appendix, or in a separate statement of objections. . . .
Because Applicant chose not to do so, objections not
renewed—such as any directed to the Testimonial
Declarations of Dr. Anthony Lee and Dr. Samir
Lapsiwala—are waived.
69 TTABVUE 6 (citation omitted).
We disagree with Opposer. Applicant adequately followed the Board’s instruction
to “renew its deferred objections in its trial brief on the case,” 55 TTABVUE 3, by
referring back to its motion to strike, which the parties had previously briefed. 66
TTABVUE 18.6 We will consider the merits of Applicant’s motion to strike.
Applicant’s arguments on its motion to strike include that “the Rebuttal
Declarations are improper and untimely because they were not submitted during
Opposer’s trial period,” and that “the Rebuttal Declarations merely serve as an
attempt to strengthen Opposer’s case-in-chief and do not rebut Applicant’s evidence.”
52 TTABVUE 3.7 According to Applicant, “all of the testimony in the Rebuttal
6 Opposer relies on Reflange, Inc. v. R-Con Int’l, No. 92016423, 1990 WL 354565, at *1 n.4
(TTAB 1990), 69 TTABVUE 6, but that case does not aid Opposer because it involved a failure
to renew objections made in depositions, not a failure to renew a deferred and briefed motion
to strike. Reflange, 1990 WL 354565, at *1 n.4.
7 Applicant also argues that “the Rebuttal Declarations are not subject to cross-examination,
which is a requirement for the submission of trial testimony submitted in the form of a
declaration,” 52 TTABVUE 3, but the Board previously rejected that argument, 55
TTABVUE 2-3, because Applicant had the opportunity under the rules to cross-examine
Opposer’s rebuttal witnesses, but elected not to do so.

Opposition No. 91268880
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Declarations should have been submitted during Opposer’s case-in-chief,” and “there
are only two potential statements from the Rebuttal Declarations which may
constitute a rebuttal to Applicant’s evidence. The remainder of the Rebuttal
Declarations consists of statements that clearly do not constitute a rebuttal and need
not be specifically addressed.” Id. at 5.
The two statements that Applicant claims “constitute a rebuttal to Applicant’s
evidence” involve the testimony of all four declarants that “I have never needed to
seek permission from [Applicant] or Dr. Ellis to use the FWBSI trademark,” and the
testimony of two of the declarants that “Dr. Ellis did not come up with the logo that
[Applicant] filed the graphic mark on. The logo was conceived and original [sic] drawn
by Dr. Bechtel.” Id. (record citations omitted). Applicant argues that “[w]hile the
statements in Opposer’s Rebuttal Declarations attempt to deny Dr. Ellis’s testimony,
there is again no valid reason for Opposer to withhold this testimony and not submit
it during Opposer’s case-in-chief,” and that “[b]ecause Opposer bears the burden of
proof in this proceeding, it was incumbent on Opposer to come forward with
admissible evidence necessary to prevail during its case-in-chief.” Id. at 6 (citation
omitted).
In response to Applicant’s arguments for exclusion, Opposer argues that the
“Board should overrule Applicant’s objections to the Rebuttal Declarations because
the Rebuttal Declarations directly rebut specific contentions from the Affidavits of
Dr. Ellis and Dr. Hubbard regarding Applicant’s affirmative defense of alleged oral
license,” and that “evidence that questions or discredits specific testimony submitted

Opposition No. 91268880
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during a respondent’s trial period is proper rebuttal evidence, even if it theoretically
could have been submitted during a litigant’s opening trial period.” 54 TTABVUE 7
(citations omitted). According to Opposer, “Applicant’s argument that the Rebuttal
Declarations should have been submitted during [Opposer’s] trial period is incorrect
because the Rebuttal Declarations were not submitted to prove an element of
Opposer’s case-in-chief,” which Opposer argues “is based on Applicant’s fraudulent
misrepresentations to the USPTO, Applicant’s lack of bona fide use of the Text Mark,
and Applicant’s lack of rightful ownership of the Text Mark.” Id. at 8.8
Opposer further argues that “Applicant alleged the existence of an oral license as
an affirmative defense against Opposer’s claims of no bona fide use and no rightful
ownership” and that Opposer’s rebuttal declarations “were introduced to rebut the
existence of the alleged oral license and any alleged control that Applicant had over
the Text Mark, as disclosed in Opposer’s Rebuttal Disclosures served on January 6,
2025.” Id.9 According to Opposer, during its case-in-chief it “introduced evidence
showing that all specimen [sic] submitted with the Application are instead instances
of the Opposer’s use of the Text Mark in commerce, not the Applicant’s,” and that its
“evidence also showed that Applicant made misrepresentations to the USPTO
regarding Applicant’s entity status and falsely claimed to conduct business under the
Opposer’s name of ‘Fort Worth Brain & Spine Institute, LLP.’” Id. (record citations
omitted).
8 As discussed above, Opposer forfeited its fraud claim by not pursuing it at trial.
9 Opposer uses “Text Mark” to refer to the standard-character mark shown in the opposed
application.

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Opposer argues that its rebuttal declarations “were introduced to deny and
discredit Applicant’s testimony regarding its affirmative defense of an alleged oral
license,” that “[t]he burden to demonstrate the existence of this alleged oral license,
along with the necessary control over the Text Mark, lies with the Applicant as part
of its affirmative defense,” and that “[i]t is not the Opposer’s burden to disprove the
existence of an oral license in its case-in-chief because it is not an element of
Opposer’s prima facie case.” Id. at 8-9. Opposer states that it has “already marshalled
its evidence for its case-in-chief and further intends to rely on Applicant’s admissions
in its pleadings to prove its case-in-chief,” and that its rebuttal declarations “are
therefore proper rebuttal evidence because they are not used to prove Opposer’s case-
in-chief but rather respond to the evidence presented by Applicant.” Id.
Opposer also responds to Applicant’s arguments that the testimony in the rebuttal
declarations does not rebut testimony offered by Applicant, arguing that the rebuttal
declarations “are proper because they directly rebut, deny, and discredit specific
claims made in the testimony of Dr. Ellis and Dr. Hubbard regarding the existence of
the alleged oral license and the Applicant’s alleged associated control of the Text
Mark.” Id. at 10. Opposer presents a table comparing specific portions of Applicant’s
testimony and specific portions of Opposer’s rebuttal testimony. Id. at 11-14. Opposer
concludes that “it was proper for Opposer to submit the Rebuttal Declarations to
rebut Applicant’s testimony on the existence of the alleged oral license and
Applicant’s alleged control, even if Opposer theoretically could have submitted such
evidence during its opening trial period.” Id. at 16.

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“During a plaintiff’s rebuttal testimony period, the plaintiff may introduce
evidence and testimony to deny, explain or discredit facts and witnesses adduced by
the defendant.” Illyrian Imp., Inc. v. Adol SH.P.K., No. 91234244, 2022 WL 970321,
at *4 (TTAB 2022). “Evidence is improper rebuttal, however, where it does not serve
to do the above, but rather where it relates to a witness and facts that might
appropriately have been introduced during the plaintiff’s case-in-chief.” Id. (citing
Life Zone Inc. v. Middleman Grp., Inc., No. 91160999, 2008 WL 2781162, at *5 (TTAB
2008); Wet Seal, Inc. v. FD Mgmt., Inc., No. 91157022, 2007 WL 458529, at *1-2
(TTAB 2008); Carefirst of Md., Inc. v. Firsthealth of the Carolinas, Inc., No. 91116355,
2005 WL 2451671, at *5 (TTAB 2005), aff’d, 479 F.3d 825 (Fed. Cir. 2007)).
As noted above, Opposer went to trial on its claims that Applicant had not used
the FORT WORTH BRAIN & SPINE INSTITUTE mark in commerce in connection
with any services prior to the filing of the opposed use-based application, and that
Applicant was not the owner of the mark when the application was filed. Applicant
pursued several pleaded affirmative defenses to Opposer’s claims.
Applicant’s “First Defense (Priority)” alleges that “Opposer is not the owner of the
Text Mark, but is merely the licensee of the Text Mark pursuant to an oral license
granted from Applicant in 2003,” and that “Opposer’s use of the Text Mark for its
services and on the domain https://fwbsi.com is pursuant to an oral license granted
by Applicant. Accordingly, Applicant has priority over Opposer for the use of the Text
Mark and Opposer’s opposition should not be sustained.” 12 TTABVUE 21-22

Opposition No. 91268880
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(Amended Answ. ¶ 44).10 Applicant’s “Second Defense (Estoppel)” similarly alleges
that “Opposer’s use of the Text Mark was made pursuant to an oral license from
Applicant.” Id. at 22 (Amended Answ. ¶ 45). Applicant’s “Fourth Defense (Licensee
Estoppel)” alleges that “Opposer is estopped from challenging the validity of the
license under the doctrine of licensee estoppel” because a “valid license exists between
the parties whereby Applicant licensed the Mark to Opposer and oversaw its usage.”
Id. at 23 (Amended Answ. ¶ 47).11
Opposer was not required to disprove these affirmative defenses in its case-in-
chief because Applicant bears the burden of proving them. See, e.g.,
Bridgestone/Firestone Rsch., Inc. v. Auto. Club de L’Quest de la France, 245 F.3d
1359, 1361 (Fed. Cir. 2001) (“Bridgestone, as the party raising the affirmative defense
of laches, bears the burden of proof.”) (citation omitted); see also DowntownDC Bus.
Improvement Dist. v. Clarke, No. 91275100, 2024 WL 4449409, at *15 (TTAB 2024)
(holding that an applicant asserting the defense that the opposer’s admitted prior use
was based on an implied license from the applicant bore the burden of proof on that
defense). As discussed in detail below, the rebuttal declarations submitted by
Opposer properly rebut testimony and documentary evidence regarding the existence
of an oral license submitted by Applicant during its trial period and on which each of
10 This defense is a misnomer because it does not claim that Applicant itself used the involved
mark before Opposer used it, but rather that Applicant always owned the mark vis-à-vis
Opposer because Opposer’s use of the mark was “pursuant to an oral license granted from
Applicant in 2003.” 12 TTABVUE 21 (Amended Answ. ¶ 44).
11 Applicant’s Fourth Affirmative Defense of licensee estoppel acknowledges that a “valid
license” must exist before the doctrine of licensee estoppel applies. 12 TTABVUE 23
(Amended Answ. ¶ 47).

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Applicant’s affirmative defenses depends. Opposer was not required to preemptively
address Applicant’s affirmative defenses, and although it could have done so, “[t]he
fact that evidence might have been offered in [the case-in-]chief does not preclude its
admission in rebuttal.” Philanthropist.com, Inc. v. Genl. Conf. Corp. of Seventh-Day
Adventists, No. 92065178, 2021 WL 2472776, at *13 (TTAB 2021) (quoting Data
Packaging Corp. v. Morning Star, Inc., No. 91061124, 1981 WL 40443, at *5 (TTAB
1981)).
Accordingly, we deny Applicant’s motion to strike the rebuttal declarations of Drs.
Siadati, Lee, Lapsiwala, and Alford in their entireties, and we have considered them
for whatever probative value they may have with respect to Applicant’s affirmative
defenses, subject to Applicant’s objections to specific portions of their testimony, to
which we now turn.
C. Applicant’s Objections to Specific Portions of the Rebuttal
Testimony of Drs. Siadati and Alford
In its motion to strike, Applicant also objects specifically to paragraph 10 of Dr.
Siadati’s Rebuttal Declaration and paragraph 7 of Dr. Alford’s Rebuttal Declaration.
52 TTABVUE 8. Each witness testified that “Dr. Ellis did not come up with the logo
that [Applicant] filed the graphic mark on. The logo was conceived and original [sic]
drawn by Dr. Bechtel.” Siadati Rebut. Decl. ¶ 10 (46 TTABVUE 3); Alford Rebut.
Decl. ¶ 7 (49 TTABVUE 3).
Applicant objects on the grounds that “[t]his statement is false, contradictory,
unsupported, and/or based upon inadmissible hearsay.” 52 TTABVUE 8. Applicant
argues that neither witness was affiliated with Applicant when it was formed in 2002,

Opposition No. 91268880
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or later when the referenced logo was created, and “could not possibly have personal
knowledge of the mark’s creation.” Id. (record citations omitted). Applicant further
argues that both witnesses testified in discovery that they did not know who created
the logo. Id. at 8-9 (record citations omitted). According to Applicant, “[t]he only way
that they could claim to have knowledge that Dr. Bechtel designed the mark (he did
not) would be if they were told by Dr. Bechtel or someone else,” and “[a]s such, their
unsupported statements in the Rebuttal Declarations would be based on hearsay, and
are therefore improper and should be disregarded.” Id. at 9. Applicant renews its
objections and repeats its arguments in its trial brief. 66 TTABVUE 18-19.
Opposer responds that “[i]t is well established that the Board generally does not
strike testimony taken in accordance with the applicable rules on the basis of
substantive objections; rather, the Board considers such objections when evaluating
the probative value of the testimony at final hearing.” 54 TTABVUE 17 (internal
quotation and quotation marks omitted). In its reply brief after trial, Opposer argues
that the referenced testimony is not hearsay and is based on sufficient personal
knowledge, and that Applicant’s arguments go to the weight to be given the
testimony, not its admissibility. 69 TTABVUE 7.
The challenged testimony involves matters that occurred before Dr. Alford became
affiliated with Opposer in 2005, Alford Rebut. Decl. ¶ 2 (49 TTABVUE 2), and before
Dr. Siadati became affiliated with Opposer in August 2006. Siadati Rebut. Decl. ¶ 2
(46 TTABVUE 2). Rule 602 of the Federal Rules of Evidence provides that “[a] witness
may testify to a matter only if evidence is introduced sufficient to support a finding

Opposition No. 91268880
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that the witness has personal knowledge of the matter,” and that “[e]vidence to prove
personal knowledge may consist of the witness’s own testimony.” Fed. R. Evid. 602.
“While there are exceptions to this hearsay exclusion rule, including the introduction
of business records into evidence, the Board has held that a witness may not offer
testimony regarding company history unless said witness has personal knowledge
thereof . . . .” City Nat’l Bank v. OPGI Mgmt. GP Inc., No. 92050730, 2013 WL
3168094, at *4 (TTAB 2013). In general, a witness “who is unable to testify to the
fulfillment of the conditions specified within the rule, and who is testifying only about
what he has read or been allowed to review,” may not testify about a matter that
occurred prior to affiliation with an entity. Id. at *5 (quotation omitted).
Opposer has not demonstrated that either Dr. Siadati or Dr. Alford has personal
knowledge of the development of the logo. Dr. Siadati testified to meeting Dr. Bechtel,
the alleged creator of the logo, during the process that culminated in Dr. Siadati’s
affiliation with Opposer, Siadati Rebut. Decl. ¶ 3 (46 TTABVUE 2), but any
information that he learned from Dr. Bechtel and testified to in his Rebuttal
Declaration is hearsay. City Nat’l Bank, 2013 WL 3168094, at *5. Dr. Alford did not
provide any basis for his testimony about the logo’s creation. We thus sustain
Applicant’s objections to paragraph 10 of Dr. Siadati’s Rebuttal Declaration and
paragraph 7 of Dr. Alford’s Rebuttal Declaration, and have given those paragraphs
no consideration.

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D. Opposer’s Evidentiary Objections
In its main brief, Opposer objects to paragraphs 4-6 of Dr. Hubbard’s Affidavit on
the ground that it is inadmissible hearsay. 63 TTABVUE 10-11.12 In these
paragraphs, Dr. Hubbard testified to his belief and understanding regarding the
claimed oral license between Dr. Ellis, acting on behalf of Applicant, and Opposer,
including Dr. Ellis’ alleged control over Opposer’s use of the FORT WORTH BRAIN
& SPINE INSTITUTE mark. Hubbard Aff. ¶¶ 4-6 (41 TTABVUE 2-3). Applicant
responds that Dr. Hubbard’s testimony is not hearsay because “Dr. Hubbard’s
testimony in the Hubbard Affidavit constitutes trial testimony, not hearsay, and is
the equivalent of live testimony in court.” 66 TTABVUE 13-14 (citation omitted).
In the objected-to testimony, Dr. Hubbard does not recount specific statements
made by others. In addition, Opposer cross-examined him. 41 TTABVUE.13 We
overrule Opposer’s hearsay objections and have considered the challenged portions of
Dr. Hubbard’s testimony for whatever probative value they may have.
Opposer also objects to Exhibits B, E, and F to Dr. Ellis’ Affidavit, which are
listings of entity filings by Applicant between 2002 and 2024 with the Texas Secretary
of State, Ellis Aff. ¶ 6; Ex. B (39 TTABVUE 2, 11-13), domain name registry
information for the domain name fwbsi.com, Ellis Aff. ¶ 10; Ex. E (39 TTABVUE 3,
12 Opposer argues in the alternative that if the objected-to paragraphs of Dr. Hubbard’s
Affidavit are not excluded, his Affidavit “should be given little to no weight because Dr.
Hubbard admitted, during his deposition, that he did not write it.” 63 TTABVUE 11. This
argument, which we discuss below, goes to the weight to be given his testimony, not its
admissibility.
13 We further note that unlike Drs. Siadati and Alford, Dr. Hubbard was affiliated with
Opposer at all times relevant to the challenged testimony.

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19-104), and an invoice from and check to a company called Adelman Graphics, Ellis
Aff. ¶ 13; Ex. F (39 TTABVUE 3, 105-07), respectively. Opposer objects to Exhibits B
and E because they lack a URL and a capture date, and to all three exhibits because
they are hearsay. 63 TTABVUE 13.
Applicant responds that Exhibit B does not contain a URL and capture dates, but
was authenticated by Dr. Ellis as accurate, and that the domain name reports, and
the invoice and check, were also authenticated by Dr. Ellis. 66 TTABVUE 15-18.
We overrule Opposer’s authenticity and hearsay objections because the objected-
to exhibits were adequately authenticated and described in Dr. Ellis’ testimony and
corroborate his testimony. See generally Sawstop, LLC v. Felder KG, No. 91255905,
2025 WL 2400134, at *9 n.44 (TTAB 2025). We have considered the exhibits for
whatever probative value they may have.
III. Opposer’s Entitlement to a Statutory Cause of Action
“Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes proceeding.” El Roblar Inv. Prop. LLC v. Roe, No. 91272200, 2025
WL 2718983, at *18 (TTAB 2025) (internal quotation and quotation marks omitted).
“Section 13 of the Trademark Act, 15 U.S.C. § 1063, ‘provides that [a]ny person who
believes he would be damaged by the registration of a mark . . . may . . . file an
opposition with the USPTO. . . .” Id. (quoting Curtin v. United Trademark Holdings,
137 F.4th 1359, 1362 (Fed. Cir. 2025) (internal quotation and quotation marks
omitted)), cert. denied, 2026 WL 1052056 (Apr. 20, 2026)). “[A] plaintiff may oppose
registration of a mark when (1) [its] interests are within the zone of interests

Opposition No. 91268880
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protected by the statute [i.e., it has a real interest in the outcome of the proceeding)]
and (2) [it] has a reasonable belief in damage that would be proximately caused by
registration of the mark in violation of the opposition statute.” Id. (quoting Curtin,
137 F.4th at 1367) (citing Lexmark Int’l Inc. v. Static Control Components, Inc., 572
U.S. 118, 129-34 (2014)). Opposer must prove its entitlement to a statutory cause of
action by a preponderance of the evidence, Sawstop, 2025 WL 2400134, at *3, even
though Applicant does not dispute entitlement.
Opposer argues that it is entitled to oppose Applicant’s application because
Opposer claims ownership of the FORT WORTH BRAIN & SPINE INSTITUTE mark
and because Applicant admits that “Opposer has used the mark consistently and
continuously for the last 18 years pursuant to an oral license granted by Applicant.”
63 TTABVUE 19 (quoting 12 TTABVUE 8 (Amended Answ. ¶ 2)).
“Although a plaintiff’s entitlement to a statutory cause of action is a threshold
issue, it is a low threshold, intended only to ensure that the plaintiff has a real
interest in the matter, and is not a mere intermeddler.” El Roblar, 2025 WL 2718983,
at *20 (internal quotation and quotation marks omitted) (finding that a prospective
user of a mark for the same services for which the applicant sought to register the
same mark was entitled to oppose the application). We find that Opposer is entitled
to oppose Applicant’s application because, as discussed in more detail below, Opposer
has used the mark that Applicant seeks to register for more than two decades, and
Opposer’s continued use of the mark would be imperiled if Applicant obtained a
registration giving Applicant a presumption of ownership and the exclusive right to

Opposition No. 91268880
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use the mark for the same services that Opposer has provided and continues to
provide under the mark. Id. at *22. The record reflecting the parties’ dispute over
ownership of the mark, discussed in detail below, also establishes Opposer’s
entitlement to a statutory cause of action. Uveritech, Inc. v. Amax Lighting, Inc., No.
92057088, 2015 WL 4380998, at *3 (TTAB 2015).
IV. Factual Background
In this section, we discuss the record evidence regarding Opposer’s non-use and
lack of ownership claims, and Applicant’s affirmative defenses based on the existence
of an oral license between Applicant and Opposer.
A. Opposer’s Non-Use and Non-Ownership Evidence
Opposer’s case-in-chief included admissions by Applicant in discovery that
Applicant did not list the FORT WORTH BRAIN & SPINE INSTITUTE mark as an
asset “in any Document, including any tax returns, financial statements, and loan
application” prior to the filing of the opposed application, 33 TTABVUE 7 (Resp. to
Req. for Adm. No. 4); that between 2004 and 2020, Applicant did not provide medical
care, medical consultation, medical counseling, medical services, surgery, and
orthopedic surgery services for any patient, id. at 7-9 (Resps. to Reqs. for Adm. Nos.
5-10); and that Applicant did not use the mark in connection with any goods or
services provided by Applicant at any time between 2004 and 2020. Id. at 9-24 (Resps.
to Reqs. for Adm. Nos. 13-14, 16-17, 19-20, 22-23, 25-26, 28-29, 31-32, 34-35, 37-38,
40-41, 43-44, 46-47, 49-50, 52-53, 55-56, 58-59, 61-62).

Opposition No. 91268880
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Applicant made other relevant admissions regarding Opposer’s use in Applicant’s
Amended Answer, which is automatically part of the record, El Roblar, 2025 WL
2718983, at *2 n.7 (citation omitted), while contending that the use was pursuant to
an oral license, including that
• “Opposer has used the mark consistently and continuously for the last 18
years pursuant to an oral license granted by Applicant,” 12 TTABVUE 8
(Amended Answ. ¶ 2);
• “Opposer has identified and promoted itself and its services to consumers
using the Text Mark on the domain https://fwbsi.com since November 25,
2003 pursuant to an oral license granted by Applicant,” id. at 8 (Amended
Answ. ¶ 3);
• “[s]ince at least as early as August 26, 2013, Opposer has maintained its
principal offices and mailing address at 1900 Mistletoe Blvd., Ste. 200, Fort
Worth, Texas 76104,” id. at 9 (Amended Answ. ¶ 5);
• “[a]s of April 19, 2021, the Texas Secretary of State had no recorded
assumed name certificates for Applicant,” id. at 11 (Amended Answ. ¶ 11);
• Applicant “has not filed an assumed name certificate for ‘Fort Worth Brain
& Spine Institute’ or ‘Fort Worth Brain & Spine Institute, LLP’ with the
Texas Secretary of State,” id. at 16 (Amended Answ. ¶ 28); and
• “the offices at 1900 Mistletoe Blvd. Ste. 200, Fort Worth Texas 76104 are
leased to and occupied by Opposer,” id. at 17 (Amended Answ. ¶ 29).
B. Applicant’s Evidence of the Existence of an Oral License
1. Dr. Ellis’ Testimony
Dr. Ellis specializes in cranial base, vascular, and general neurosurgery. Ellis Aff.
¶ 2 (39 TTABVUE 2). He testified that in 2002, he selected “‘Fort Worth Brain and
Spine Institute, P.A.’ as the trade name and FORT WORTH BRAIN AND SPINE
INSTITUTE as the service mark (the ‘Mark’) that I would use for my medical practice
and took steps to adopt the trade name and Mark.” Ellis Aff. ¶ 3 (39 TTABVUE 2).

Opposition No. 91268880
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He “caused Applicant Fort Worth Brain and Spine Institute, P.A. (‘Applicant’) to
register ‘Fort Worth Brain and Spine Institute, P.A.’ with the Texas Secretary of
State on or about February 19, 2002, pursuant to the Texas Professional Association
Act,” Ellis Aff. ¶ 4 (39 TTABVUE 2), and he authenticated the “Articles of Association
of Fort Worth Brain and Spine Institute, P.A.” Ellis Aff. ¶ 5; Ex. A (39 TTABVUE 2,
5-10). Fort Worth Brain and Spine Institute, P.A. made subsequent filings with the
Texas Secretary of State. Ellis Aff. ¶ 6; Ex. B (39 TTABVUE 2, 11-13). With the
exception of a November 2008 Application for Reinstatement After Involuntary
Dissolution or Revocation, Ellis Aff. ¶ 7; Ex. C (39 TTABVUE 2, 14-16), and a 2024
Texas Franchise Tax Public Information Report, Ellis Aff. ¶ 8; Ex. D (39 TTABVUE
3, 17-18), the record does not reflect the contents of any of these averred filings.
Dr. Ellis testified that in February 2003, shortly before Opposer’s formation, he
purchased the domain name fwbsi.com in his capacity as Applicant’s sole director.
Ellis Aff. ¶ 10; Ex. E (39 TTABVUE 3, 19-104). In early 2003, he also “prepared the
rendering for Applicant’s Mark ‘Fort Worth Brain & Spine Institute’ and the
accompanying logo, and caused Applicant to engage Adelman Graphics for
professional graphics and high resolution files to be created.” Ellis Aff. ¶ 11 (39
TTABVUE 3). He claimed that he “did not receive, prior to or after the formation of
Opposer Fort Worth Brain & Spine Institute, L.L.P. (‘Opposer’), any input from other
partners of Opposer regarding the selection of the Mark, the graphics for the Mark
or the accompanying logo, or the engagement of the graphic designer,” Ellis Aff. ¶ 12

Opposition No. 91268880
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(39 TTABVUE 3),14 and that he “personally signed the check written by ‘Fort Worth
Brain and Spine Institute, P.A.’ on which Applicant paid Adelman Graphics’ invoice
for services and such invoice was paid by Applicant after Opposer was formed.” Ellis
Aff. ¶ 13; Ex. F (39 TTABVUE 3, 105-08) (emphasis in bold here in italics in the
original).
Dr. Ellis testified that on or about March 4, 2003, “I, through my professional
association, Thomas S. Ellis, M.D., FACS PA, and three other doctors and their
respective P.A.s, formed Opposer, a Texas limited liability partnership called ‘Fort
Worth Brain & Spine Institute, L.L.P.’ The three other founding doctors are: Richard
O. Hubbard, M.D., Philip C. Bechtel, M.D., and Andrea L. Halliday, M.D.” Ellis Aff.
¶ 14 (39 TTABVUE 3). On March 19, 2003, Opposer and Dr. Ellis’ professional
association Thomas S. Ellis, M.D., FACS, P.A. entered into a Professional Association
Services Agreement, which stated that it was effective nunc pro tunc to March 5,
2003. Ellis Aff. ¶ 16; Ex. H (39 TTABVUE 3, 113-30).
Dr. Ellis testified that “[t]o permit Opposer to form with the name ‘FORT WORTH
BRAIN & SPINE INSTITUTE’, the name I used for my personal professional
association (PA), I, as sole director of Applicant, provided Opposer with an oral license
14 A logo mark is mentioned in the testimony of several witnesses. It appears to be the one
that is shown in Registration No. 6264709 for “Medical care; Medical consultations; Medical
counseling; Medical services; Surgery; Orthopaedic surgery services; Orthopedic surgery
services,” which issued to Applicant on February 9, 2021 based on claimed first use anywhere
and first use of the mark in commerce at least as early as February 19, 2002. 50 TTABVUE
4-56. The specimen of use was a page from Opposer’s website. The logo also appears on the
specimen of use submitted in support of the opposed application.

Opposition No. 91268880
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to use the Mark that is subject to this opposition.” Ellis Aff. ¶ 17 (39 TTABVUE 3).
He testified specifically that
[a]cting as Applicant’s sole director, I caused Applicant to
grant Opposer a license for use of the Mark on two
conditions: (1) I, Dr. Ellis, through my personal
professional association, must remain a partner in Opposer
(LLP) while the Mark is used, and (2) that Applicant,
through me as its sole director, maintains control of the
manner in which the Opposer (LLP) uses the Mark.
Ellis Aff. ¶ 18 (39 TTABVUE 3).
Dr. Ellis described his claimed control over “the manner in which the Opposer
(LLP) uses the Mark” as follows:
As Applicant’s director, I have maintained sole control of
the original high-resolution graphics as prepared by
Adelman Group [sic] in 2003 and such graphics are still the
only ones used today.
. . .
I have, as sole director of Applicant, managed Opposer’s
use of the Mark by requiring approval of any use of the
Mark on marketing materials used by Opposer and
policing third-party usage of the Mark to avoid confusion
in the marketplace.
. . .
As Opposer’s Manager, I have been able to oversee
virtually every aspect of Opposer’s use of the Mark and the
services provided thereunder.
Ellis Aff. ¶¶ 19-21 (39 TTABVUE 4).

Opposition No. 91268880
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2. Dr. Hubbard’s Testimony
Dr. Hubbard echoed Dr. Ellis’ testimony regarding the claimed oral license.15 Dr.
Hubbard testified that he and the other founding partners of Opposer “decided to use
‘Fort Worth Brain and Spine Institute’ for the LLP’s name because Dr. Ellis had
previously been using that name since 2002 and agreed, on behalf of Fort Worth Brain
and Spine Institute, P.A. (the ‘PA’), to allow the LLP to license the use of the name.”
Hubbard Aff. ¶ 4 (41 TTABVUE 2). Dr. Hubbard acknowledged that “I am not aware
of any written agreement where the PA agreed to license the name to the LLP,” but
testified that “it is my belief that Dr. Ellis, on behalf of the PA, granted the license
verbally,” and that “[n]one of the other partners, of course, objected.” Hubbard Aff.
¶ 4 (41 TTABVUE 2). Dr. Hubbard described the terms of the oral license as follows:
At the time, it was my understanding that Dr. Ellis, on
behalf of the PA, agreed to allow the LLP to use the “Fort
Worth Brain and Spine Institute” name for as long as Dr.
Ellis remained a partner in the LLP, which made sense to
me given that Dr. Ellis came up with the name while with
the PA. . . . In addition, as part of the verbal license, Dr.
Ellis, on behalf of the PA, agreed to allow the LLP to use
the name as long as Dr. Ellis, on behalf of the PA, was
permitted to control the manner and means in which the
LLP used the name. All of the partners were in agreement.
Hubbard Aff. ¶ 5 (41 TTABVUE 2-3).
15 At trial, Applicant did not offer the testimony of Dr. Halliday or Dr. Bechtel, the other
founding partners of Opposer. On cross-examination of Dr. Hubbard, Opposer’s counsel
briefly examined him about an “Affidavit of Philip C. Bechtel,” which was submitted in 2021
in Applicant’s opposition to Opposer’s unsuccessful partial summary judgment motion.
Hubbard Cross Tr. 31:10-32:14; Ex. 4 (45 TTABVUE 32-33, 104-05). Dr. Hubbard admitted
that except for the names and dates, his affidavit and Dr. Bechtel’s summary judgment
affidavit were the same. Hubbard Cross Tr. 32:7-14 (45 TTABVUE 33). Dr. Hubbard’s trial
affidavit was also substantively identical to one that he submitted four years earlier in
opposition to Opposer’s summary judgment motion. 13 TTABVUE 292-93.

Opposition No. 91268880
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Dr. Hubbard also testified about Dr. Ellis’ claimed control over the use of the mark
as follows:
Through my personal professional association with the
LLP over a number of years, I have firsthand knowledge
that the PA and the LLP operated in accordance with the
verbal license. For example, Dr. Ellis, on behalf of the PA,
would regularly discuss, monitor, approve and ultimately
control how the name was being used. Examples of this
include how the LLP used the mark on the website, its
letterhead, and on its office space. There is no question in
my mind that during my tenure with the LLP that the PA
exercised control over the LLP’s use of the name, “Fort
Worth Brain and Spine Institute.”
Hubbard Aff. ¶ 6 (41 TTABVUE 3).16
Dr. Hubbard testified on cross-examination that he did not recall any written
agreement at any time between Applicant and Opposer regarding the FORT WORTH
BRAIN & SPINE INSTITUTE mark, Hubbard Cross Tr. 14:4-18 (45 TTABVUE 15),
and that he could not recall the dates or details of the meetings when the claimed
oral license was granted. Hubbard Cross Tr. 14:19-16:18 (45 TTABVUE 15-17).17 He
16 On cross-examination, Dr. Hubbard authenticated his affidavit, Hubbard Cross Tr. 30:16-
31:7 (41 TTABVUE 31), but admitted that he did not write it, that it was given to him already
written, and that other than agreeing with its contents, he had no input into it and made no
edits to it. Hubbard Cross. Tr. 34:10-22 (41 TTABVUE 35). It is common knowledge that lay
witnesses rarely write their own declarations or affidavits, which are instead prepared by
counsel, and there is nothing improper about this process so long as the testifying witness
reads, understands, and agrees with the contents of a declaration or affidavit before signing
it under oath. Indeed, it is self-evident that the Rebuttal Declarations of Opposer’s four
witnesses were prepared by Opposer’s counsel, as some of their testimony is identical and
other testimony is very similar in both substance and language. In assessing the testimony
of both parties’ witnesses, we have taken into account that we do not know how much, if any,
deliberation the witnesses gave their testimony before signing it.
17 Dr. Hubbard was not one of Opposer’s partners in 2014, when the then-partners executed
the “Amended and Restated Agreement of Partnership of Fort Worth Brain & Spine Institute,
L.L.P.” (the “2014 Amended and Restated Partnership Agreement”) discussed below. He
testified that he could not recall a number of details regarding the formation of Opposer,
Hubbard Cross Tr. 10:11-19, 14:19-15:20, 16:7-14, 17:23-18:7 (45 TTABVUE 11, 15-19), which

Opposition No. 91268880
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also did not recall discussions with any of Opposer’s current partners during the
recruiting process. Hubbard Cross Tr. 17:23-18:7 (45 TTABVUE 18-19). He testified
that the oral licensing of the mark occurred at the same time as the execution of the
“Agreement of Partnership of Fort Worth Brain & Spine Institute, L.L.P” (the “2003
Partnership Agreement”), Hubbard Cross Tr. 36:20-23 (45 TTABVUE 37), and he
acknowledged signing the 2003 Partnership Agreement and the “Application for
Registration of Limited Liability Partnership,” which was filed with the Texas
Secretary of State on March 4, 2003. Hubbard Cross Tr. 19:5-20:5, 22:16-24:22; Exs.
1-2 (45 TTABVUE 20-21, 23-25, 52-84).
Dr. Hubbard admitted on cross-examination that the other members of a medical
partnership do not control how each member physician treats patients, Hubbard
Cross Tr. 28:17-29:13 (45 TTABVUE 29-30), and that he never had to ask for
permission from Applicant to run his medical practice or use the FORT WORTH
BRAIN & SPINE INSTITUTE mark. Hubbard Cross Tr. 29:10-17 (45 TTABVUE
30).18
he mistakenly placed “around 2000, 2001, 2002, sometime around that.” Hubbard Cross Tr.
10:7-10) (45 TTABVUE 11).
18 Applicant made of record Opposer’s Initial Disclosures and certain of Opposer’s discovery
responses, 37 TTABVUE 1-50, as well as certain of Applicant’s own discovery responses that
Applicant argued should in fairness be considered so as not to make misleading the discovery
responses filed by Opposer in its case-in-chief. 38 TTABVUE 1-25. We have reviewed this
evidence and find that it does not establish any additional material facts supporting
Applicant’s claim of an oral license.

Opposition No. 91268880
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C. Opposer’s Evidence in Rebuttal to Applicant’s Oral License
Defenses
1. Dr. Alford’s Testimony
Dr. Alford joined Opposer in 2005 and became a partner in 2006. Alford Rebut.
Decl. ¶ 2 (49 TTABVUE 2). He testified that “[d]uring the negotiation process for my
entry into the partnership of [Opposer], I was told all partners were to be equal” and
“[t]here was no mention of the existence of [Applicant], no mention of any relationship
between [Opposer] and [Applicant], and no mention of any trademark licensing
arrangements.” Alford Rebut. Decl. ¶ 3 (49 TTABVUE 2). He further testified that
“[u]nder my Professional Services Agreement with [Opposer], I retain sole
professional judgment in the provision of services,” that “[t]hroughout my entire 20-
year career at [Opposer], neither [Applicant] nor Dr. Ellis has exercised control over
the nature and quality of the services I provide,” and that “I never once had to get
permission from [Applicant] or Dr. Ellis to use the FWBSI trademark.” Alford Rebut.
Decl. ¶ 4 (49 TTABVUE 2-3). He also testified that until 2020, when the opposed
application was filed, he was unaware of the existence of Applicant. Alford Rebut.
Decl. ¶¶ 5-6 (49 TTABVUE 3).
Dr. Alford authenticated copies of the 2003 Partnership Agreement and the 2014
Amended and Restated Partnership Agreement discussed above. Alford Rebut. Decl.
¶ 8; Ex. A (49 TTABVUE 3, 5-58). The 2014 Amended and Restated Partnership
Agreement was executed by the professional associations of Dr. Ellis, Opposer’s four
rebuttal witnesses, and two other partners, Drs. Atif Haque and Alok Chaudhari, all

Opposition No. 91268880
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of whom were stated to have equal partnership shares. Alford Rebut. Decl. Ex. A (49
TTABVUE 56-57).19
2. Dr. Siadati’s Testimony
Dr. Siadati also joined Opposer in 2006 and became a partner in 2007. Siadati
Rebut. Decl. ¶ 2 (46 TTABVUE 2). He testified that “I was introduced to [Opposer’s]
then partner Dr. Bechtel by Steve Newton who was CEO of Baylor all Saints in 2006”
and that he “met the other partners during a dinner at Silver Fox. The advertised
position was one for all and one for all. Eat what you kill model. No buy in, no buy
out. All partners were to be equal.” Siadati Rebut. Decl. ¶ 3 (46 TTABVUE 2). He also
testified that “[d]uring the negotiation process for my entry into the partnership of
[Opposer], there was no mention of the existence of [Applicant], no mention of any
relationship between [Opposer] and [Applicant], and no mention of any trademark
licensing arrangements.” Siadati Rebut. Decl. ¶ 4 (46 TTABVUE 2).
Dr. Siadati further testified that “[i]n addition to being a partner of [Opposer]
(through my own P.A., Abdolreza Siadati, M.D., P.A.), I’m also a member of
[Opposer’s] Legal Affairs Committee, Strategic Planning Committee, and Finance
Committee,” and that “I oversee the people in my own clinic and have a vote on
19 Applicant took the discovery deposition of Dr. Alford in 2021 and offered certain portions
during Applicant’s trial period. 35 TTABVUE 2, 6-17. Dr. Alford acknowledged in his
deposition that he did not know whether Applicant gave Opposer a trademark license, Alford
Tr. 12:16-22 (35 TTABVUE 11); that he did not know whether Opposer owns the FORT
WORTH BRAIN & SPINE INSTITUTE mark, Alford Tr. 13:1-5 (35 TTABVUE 12); that he
knew and trusted Dr. Bechtel, but had not asked him about a trademark license, Alford Tr.
15:8-12 (35 TTABVUE 13); and that he would believe Dr. Hubbard if he testified that
Applicant gave Opposer a trademark license of the FORT WORTH BRAIN & SPINE
INSTITUTE mark. Alford Tr. 17:11-15 (35 TTABVUE 15).

Opposition No. 91268880
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running of the practice matters as a whole. Dr. Lee and I manage legal affairs. Dr.
Lapsiwala and I manage finance issues, and Dr. Alford and I manage strategic
issues.” Siadati Rebut. Decl. ¶ 5 (46 TTABVUE 3).
He also testified that “[u]nder my Professional Services Agreement with
[Opposer], I retain sole professional judgment in the provision of services,” that
Opposer “is organized like five different silos under one roof” with “[e]ach of the five
physicians in [Opposer] hav[ing] our own clinic staff, medical assistants, and
schedulers and run[ning] independent practices within [Opposer],” and that
“[t]hroughout my entire 18-year career at [Opposer], neither [Applicant] nor Dr. Ellis
has exercised control over the nature and quality of the services I provide.” Siadati
Rebut. Decl. ¶¶ 6-7 (46 TTABVUE 3). He described Dr. Ellis as “respected as the elder
within our group,” but testified that “each of us manages our own practice
independently” and that “I have never needed to seek permission from [Applicant] or
Dr. Ellis to use the FWBSI trademark.” Siadati Rebut. Decl. ¶ 7 (46 TTABVUE 3).
He also denied knowledge of Applicant’s existence until he discovered that the
opposed application had been filed, Siadati Rebut. Decl. ¶¶ 8-9 (46 TTABVUE 3), and
he authenticated the 2003 Partnership Agreement and the 2014 Amended and
Restated Partnership Agreement. Siadati Rebut. Decl. ¶ 11; Ex. A (46 TTABVUE 3,
5-58).20
20 Applicant took the discovery deposition of Dr. Siadati in 2021 and offered certain portions
during Applicant’s trial period. 35 TTABVUE 3, 32-44. Dr. Siadati testified in his deposition
that he could not dispute the testimony in the summary judgment affidavits of Dr. Bechtel
and Dr. Hubbard that there was a verbal license between Applicant and Opposer because he
was not associated with Opposer at the time and that he was not calling Applicant’s summary
judgment witnesses liars, Siadati Tr. 28:20-29:14 (35 TTABVUE 37-38); that he understood,

Opposition No. 91268880
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3. Dr. Lapsiwala’s Testimony
Dr. Lapsiwala testified that he joined Opposer in 2009 and became a partner in
early 2010. Lapsiwala Rebut. Decl. ¶ 2 (47 TTABVUE 2). He testified that “[d]uring
the negotiation process for my entry into the partnership of [Opposer], I was told all
partners were to be equal” and “[t]here was no mention of the existence of [Applicant],
no mention of any relationship between [Opposer] and [Applicant], and no mention
of any trademark licensing arrangements,” Lapsiwala Rebut Decl. ¶ 3 (47 TTABVUE
2); that “[u]nder my Professional Services Agreement with [Opposer] I retain sole
professional judgment in the provision of services;” that “[t]hroughout my entire 15-
year career at [Opposer], neither [Applicant] nor Dr. Ellis has exercised control over
the nature and quality of the services I provide;” that “[w]hile Dr. Ellis is respected
as the elder within our group, each of us manages our own practice independently;”
and that “I never once had to get permission from [Applicant] or Dr. Ellis to use the
FWBSI trademark.” Lapsiwala Rebut Decl. ¶ 4 (47 TTABVUE 2-3). He also testified
that until 2020, when the opposed application was filed, he was unaware of
Applicant’s existence, Lapsiwala Rebut Decl. ¶¶ 5-6 (47 TTABVUE 3), and he
at least as of the date of the deposition, that there was a license between Applicant and
Opposer and that Dr. Ellis had claimed that the license would continue as long as he was
working for Opposer, Siadati Tr. 30:24-31:18 (35 TTABVUE 39-40); that Opposer did not
exist when the domain name fwbsi.com was registered, Siadati Tr. 31:6-19 (35 TTABVUE
41); that Dr. Ellis retained the digital file for Opposer’s logo, Siadati Tr. 55:2-4, 17-25 (35
TTABVUE 42); and that he did not know whether Dr. Ellis came up with the name Fort
Worth Brain and Spine Institute, developed the logo, and licensed the mark to Opposer, and
could not point to any documents that contradicted Applicant’s claim of the existence of an
oral license. Siadati Tr. 66:9-18, 70:7-9 (35 TTABVUE 43-44).

Opposition No. 91268880
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authenticated the 2003 Partnership Agreement and the 2014 Amended and Restated
Partnership Agreement. Lapsiwala Rebut Decl. ¶ 7; Ex. A (47 TTABVUE 3, 4-57).21
4. Dr. Lee’s Testimony
Dr. Lee has been a partner with Opposer since 2010. Lee Rebut. Decl. ¶ 2 (48
TTABVUE 2). He testified that “[d]uring the negotiation process for my entry into
the partnership of [Opposer], my understanding was that there were no investments
needed and I would be considered as an equal partner,” and that “[t]here was no
mention of the existence of [Applicant], no mention of any relationship between
[Opposer] and [Applicant], and no mention of any trademark licensing
arrangements.” Lee Rebut. Decl. ¶ 3 (48 TTABVUE 2). He also testified that “[u]nder
my Professional Services Agreement with [Opposer], I have the right to retain sole
professional judgment in the provision of services,” that “[t]hroughout my entire 15-
year career at [Opposer], neither [Applicant] nor Dr. Ellis has exercised control over
the nature and quality of the services I provide,” and that “[w]hile Dr. Ellis is
respected as the elder within our group, each of us manages our own practice
21 Applicant took the discovery deposition of Dr. Lapsiwala in 2021 and offered certain
portions during Applicant’s trial period. 35 TTABVUE 3, 18-31. At his deposition, Dr.
Lapsiwala testified that he could not dispute the existence of a license agreement in 2003
because he was not associated with Opposer at the time, and that he could not point to any
evidence that would contradict what Applicant’s summary judgment witnesses testified to
regarding a license, Lapsiwala Tr. 13:18-14:4 (35 TTABVUE 23-24); that he was one of the
four partners that voted to dissolve Opposer and that Opposer wanted ownership of the mark,
Lapsiwala Tr. 23:16-24 (35 TTABVUE 25); that he understood that if Opposer fired Dr. Ellis,
Applicant might terminate the implied license, Lapsiwala Tr. 35:22-36:2 (35 TTABVUE 27-
28); that he could not dispute the testimony of Applicant’s summary judgment witnesses
regarding the oral license because he was not associated with Opposer when the oral license
was allegedly granted, Lapsiwala Tr. 40:7-25 (35 TTABVUE 29); and that Dr. Ellis was a
micro-manager and was heavily involved in all decisions related to Opposer. Lapsiwala Tr.
42:25-43:5 (35 TTABVUE 30-31).

Opposition No. 91268880
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independently [and] I have no recollection of ever having to ask for permission from
[Applicant] or Dr. Ellis to use the FWBSI trademark.” Lee Rebut. Decl. ¶ 4 (48
TTABVUE 2-3). He also testified that until 2020, when the opposed application was
filed, he was unaware of the existence of Applicant, Lee Rebut. Decl. ¶ 5-6 (48
TTABVUE 3), and he authenticated the 2003 Partnership Agreement and the 2014
Amended and Restated Partnership Agreement. Lee Rebut. Decl. ¶ 7; Ex. A (48
TTABVUE 3, 4-57).22
V. Opposer’s Non-Use and Non-Ownership Claims
A. Applicable Law
Opposer asserts two separate claims here, Applicant’s lack of ownership of the
applied-for mark, and Applicant’s non-use of the mark prior to the filing of the
opposed application.
With respect to Opposer’s non-ownership claim, “only the owner of the mark may
file an application” to register it under Section 1(a) of the Trademark Act. CBC Mortg.
Agency v. TMRR, LLC, No. 92076723, 2022 WL 3444028, at *8 (TTAB 2022) (quoting
Wonderbread 5 v. Gilles, No. 92052150, 2015 WL 4380986, at *8 (TTAB 2015)). “Thus,
an application filed by one who is not the owner of the mark sought to be registered
22 Applicant took the discovery deposition of Dr. Lee in 2021 and offered certain portions
during Applicant’s trial period. 35 TTABVUE 3-4, 45-51. At his deposition, Dr. Lee testified
that he recalled becoming a partner with Opposer in 2009, Lee Tr. 7:6-7 (35 TTABVUE 49),
and that he had no evidence to refute the testimony of Applicant’s summary judgment
witnesses regarding an oral license. Lee Tr. 45:5-13 (35 TTABVUE 51).

Opposition No. 91268880
- 33 -
is a void application.” Id. (quoting In re Tong Yang Cement Corp., No. 73730247, 1991
WL 326558, at *2 (TTAB 1991) (internal citation omitted)).23
As to Opposer’s non-use claim, “[t]he law is clear that an application can be held
void if the plaintiff pleads and proves . . . nonuse of a mark for all identified goods or
services prior to the application filing date.” ShutEmDown Sports, Inc. v. Lacy, No.
92049692, 2012 WL 684464, at *11 (TTAB 2012) (citation omitted)).
As noted above, Applicant admits that between 2004 and 2020, when Applicant
filed the opposed application, Applicant itself never provided medical care, medical
consultation, medical counseling, medical services, surgery, or orthopedic surgery
services for any patient, 33 TTABVUE 7-9 (Resps. to Reqs. for Adm. Nos. 5-10), and
that Applicant did not use the mark FORT WORTH BRAIN & SPINE INSTITUTE
in connection with any goods or services provided by Applicant at any time between
those dates. Id. at 9-24 (Resps. to Reqs. for Adm. Nos. 13-14, 16-17, 19-20, 22-23, 25-
26, 28-29, 31-32, 34-35, 37-38, 40-41, 43-44, 46-47, 49-50, 52-53, 55-56, 58-59, 61-62).
Applicant also admits that “Opposer has used the mark consistently and continuously
for the last 18 years,” but claims that such use was only “pursuant to an oral license
23 Dr. Ellis claims to have “selected” FORT WORTH BRAIN & SPINE INSTITUTE as “the
service mark . . . [he] would use for [his] medical practice” in early 2002 (i.e., before Opposer
was formed). Ellis Aff. ¶ 3 (39 TTABVUE 2). It is well settled, however, that merely
“selecting” or inventing a symbol does not create trademark rights or result in their
ownership. See Hole in 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, at *10 (TTAB
2020) (“To the extent that Respondent argues he created the mark, trademark rights are not
gained by creating a mark, but through use of the mark.”); Reflange, 1990 WL 354565, at *6
(“[I]t is not the act of inventing a trademark which creates prior rights.”). Rather, “trademark
rights arise from use and not mere adoption.” DowntownDC, 2024 WL 4449409, at *12
(quoting La Maur, Inc. v. Int’l Pharm. Corp., No. 91057590, 1978 WL 21258, at *4 (TTAB
1978)).

Opposition No. 91268880
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granted by Applicant.” 12 TTABVUE 8 (Amended Answ. ¶ 2). Taken together, these
admissions establish a prima facie case on Opposer’s non-ownership and non-use
claims that Applicant itself was not using the FORT WORTH BRAIN & SPINE
INSTITUTE mark in commerce in connection with any services identified in the
opposed use-based application when Applicant filed it in 2020, and that Opposer, the
only user of the mark between 2004 and 2020, was its owner at the time. Applicant
claims nevertheless that it owned the mark and had the right to register it when it
filed the opposed application on the theory that Applicant has always been the owner
of the mark, and that Opposer’s use of the mark has always been under an oral license
granted by Applicant to Opposer in 2003.
In DowntownDC, a case cited by neither party, but one that we find instructive
because it is similar in some important respects to this case, the Board considered a
Section 2(d) likelihood of confusion claim by an opposer against the opposer’s ex-
employee, who applied to register the mark DOWNTOWNDC DISTRICT OF
FASHION for fashion show services that the applicant claimed she had developed
during her employment with the opposer. DowntownDC, 2024 WL 4449409, at *12.
The applicant claimed that she was the owner of the mark, and the prior user vis-à-
vis the opposer, because the mark had always been used by the opposer under an
implied license from the applicant. Id.
The Board held that “[t]he test for whether or not an implied license existed is
based solely on the objective conduct of the parties,” id. at *16 (citations omitted), and
that it was “incumbent upon Applicant to overcome the prima facie presumption [of

Opposition No. 91268880
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the opposer’s ownership through use] by presenting competent and convincing
evidence that Opposer’s activities in regard to DOWNTOWNDC DISTRICT OF
FASHION were instead as a licensee under Applicant’s control and supervision.” Id.
at *15 (citing Am. Asbestos Prods. Co. v. Horne, 1965 WL 7824, at *3 (TTAB 1965)
(finding that an employee failed to prove the existence of an alleged oral license from
the employee to the employer)). DowntownDC, and the Board’s recent precedential
decision in Olsman, MacKenzie, Peacock & Wallace, P.C. v. Thomas, No. 91272167,
2026 WL _____ (TTAB Sept. 10, 2026), both hold that in the employer-employee
context, there is a rebuttable presumption that the employer owns the disputed mark
based on its use of the mark. We extend that principle here to the partnership-partner
context, and hold that there is a rebuttable presumption that the partnership owns
the disputed mark based on its use of the mark. In both contexts, the presumption of
ownership can be rebutted by a preponderance of the evidence showing the
adversary’s ownership of the mark.24
“In most instances under contract law, a . . . trademark owner intentionally
creates an express license.” DowntownDC, 2024 WL 4449409, at *15 (quoting McCoy
v. Mitsuboshi Cutlery Co., 67 F.3d 917, 920 (Fed. Cir. 1995)). An oral license of the
sort alleged here is a form of express license and, as discussed below, we find that the
test for whether or not an oral license existed here should also be “based solely on the
24 As noted above, DowntownDC referred to “competent and convincing” evidence as the proof
necessary to overcome the presumption. DowntownDC, 2024 WL 4449409, at *15. Olsman,
MacKenzie explains that “competent and convincing” evidence requires only preponderant
evidence that is sufficient to rebut the presumption of ownership. Olsman, MacKenzie, 38
TTABVUE 39 n.136 (No. 91272167).

Opposition No. 91268880
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objective conduct of the parties.” Id. at *16. Accordingly, we will examine the record
to determine whether Applicant presented sufficient evidence based “solely on the
objective conduct of the parties” to show that Opposer’s admitted exclusive use of the
FORT WORTH BRAIN & SPINE INSTITUTE mark for more than 20 years was as
Applicant’s oral licensee and not as the owner of the mark.
Licenses are contracts, and the parties agree that Texas law applies to the alleged
oral license at issue in this case. 63 TTABVUE 24-25; 66 TTABVUE 26. Applicant
argues, without dispute from Opposer, that “[u]nder Texas law, the requirements of
written and oral contracts are the same and must be present for a contract to be
binding,” 66 TTABVUE 26 (citation omitted), and sets forth those requirements as
follows: “(1) an offer; (2) acceptance in strict compliance with the terms of the offer;
(3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution
and delivery of the contract with the intent that it be mutual and binding.” Id. (citing
Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004, pet. denied)).
Under Texas law, “[i]n determining the existence of an oral contract, the court looks
to the communications between the parties and to the acts and circumstances
surrounding the communications.” Gallier v. Woodbury Fin. Servs., Inc., 171 F. Supp.
3d 552, 567 (S.D. Tex. 2016) (quoting Thornton v. Dobbs, 355 S.W. 3d 312, 316 (Tex.
App.—Dallas 2011, no pet)). As in the case of the determination of the existence of
the alleged implied license in DowntownDC, “[t]he determination of a meeting of the
minds, and thus offer and acceptance, is based on the objective standard of what the
parties said and did and not on their subjective state of mind.” Gallier, 171 F. Supp.

Opposition No. 91268880
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3d at 567 (quoting Copeland v. Alsobrook, 3 S.W. 3d 598, 604 (Tex.App.–San Antonio
1999, pet. denied)). “It is not enough that one party thinks there was a contract; they
must show that their intentions to contract were expressed in a manner that the court
is capable of understanding.” Id. (quoting Copeland, 3 S.W. 3d at 605).
The fundamental issue here is whether the alleged oral license was ever formed
in the first place, which turns, on the particular facts here, primarily on whether
there is sufficient objective evidence “of what the parties said and did” to show a
“meeting of the minds” between Opposer and Applicant involving an offer and an
acceptance that resulted in the formation of the alleged oral license on agreed-upon
terms. Gallier, 171 F. Supp. 3d at 567.
B. Summary of the Parties’ Arguments
Opposer summarizes its position as follows:
Applicant’s assertion that Opposer’s use of the Mark inures
to Applicant’s benefit pursuant to an alleged oral license is
baseless for three reasons. First, besides Applicant’s self-
serving testimony, there is no evidence corroborating the
existence of the purported license. Indeed, no documents,
including Opposer’s partnership agreement, which was
even amended in 2014, reference Applicant or the alleged
license, and none of the partners of Opposer (aside from
Applicant’s sole member) knew about Applicant or the
alleged license before this opposition was filed. Thus,
Applicant’s alleged license does not exist.
Second, any such license between Opposer and Applicant
is void and unenforceable for lack of consideration.
Applicant’s two identified alleged considerations are not
sufficient to support the alleged license as a valid and
enforceable contract. And third, even assuming the so-
called license does (or did) exist, there is no evidence
showing that Applicant exercised the requisite control over

Opposition No. 91268880
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Opposer’s use of the Mark for Opposer’s use to inure to
Applicant’s benefit.
63 TTABVUE 7.
With respect to the non-existence of the alleged oral license, Opposer argues that
before 2020, none of the other partners of Opposer were
aware of the existence of Applicant or the alleged oral
license, including any alleged use of the Mark by Applicant.
. . . In fact, before 2020, there were no interactions,
business relationships, or agreements between Opposer
and Applicant. . . . The existence of the alleged license is
not reflected in the relevant documentation, including
Opposer’s Application for Registered Limited Liability
Partnership, the Agreement of Partnership, the Amended
and Restated Agreement of Partnership, or Opposer’s
Professional Association Services Agreement.
Id. at 17-18 (record citations omitted).
Opposer further argues that its witnesses, and Applicant’s witness Dr. Hubbard,
all testified that they did not need to seek permission from Applicant or Dr. Ellis to
run their respective medical practices, id. at 18-19, and that “the only ‘evidence’ of
the oral license is Dr. Ellis’ post-hoc self-serving testimony because Dr. Hubbard
could not provide any details about the alleged license.” Id. at 24 (record citations
omitted). Opposer concludes that “it is more likely that Applicant made up the alleged
license after this opposition was filed, than [sic] there [sic] been zero evidence of the
alleged license.” Id.
Applicant summarizes its position on the alleged oral license as follows:
Opposer seeks to undo a trademark license that has been
in place, without complaint or incident, for over two
decades. The license was created in 2003 by the founding
partners of Opposer to align themselves with Applicant’s
founder, Dr. Thomas S. Ellis . . ., a renowned neurosurgeon.
Save for Dr. Ellis, the founding partners of Opposer have

Opposition No. 91268880
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all moved on. In their place are four partners who now wish
to discard the trademark license and claim ownership of
the FORT WORTH BRAIN & SPINE INSTITUTE
trademark . . . for themselves to the exclusion of Applicant.
Indeed, in early 2021, the new partners of Opposer failed
in an attempt to dissolve Opposer as a means to eliminate
their leader, Dr. Ellis. On the heels of that setback,
Opposer filed the instant Opposition. Now, Opposer seeks
to invalidate the decades old license because the new
partners prefer a different arrangement than the one that
has existed—a new arrangement wherein Opposer owns
and controls the Mark and Applicant is left with nothing.
66 TTABVUE 8.
Applicant further argues that it
has submitted objective, corroborating documentary
evidence demonstrating that Applicant, in furtherance of
its ownership of the Mark, retained and paid a third-party
to assist with the design aspects pertaining to the Mark
and also purchased the domain name related to the Mark
prior to Opposer’s formation. [T]he record overwhelmingly
establishes the existence of a valid and binding oral
licensing agreement. Testimony from multiple founding
partners of Opposer, based on firsthand knowledge,
confirm and corroborate the existence of a license
supported by consideration. Opposer offers nothing to
refute the existence of the license, nor could it because none
of the new partners were around when the license was
established. [T]here is testimonial evidence establishing
that the parties operated in accordance with the license,
including Applicant exercising control over the Mark and
Dr. Ellis (through his personal professional association)
remaining a partner in Opposer.
Id. at 8-9.
Applicant specifically argues that “[i]t is undisputed that Applicant existed prior
to Opposer’s formation;” that “Dr. Ellis caused Applicant to register ‘Fort Worth Brain
and Spine Institute, P.A.’ with the Texas Secretary of State on or about February 19,
2002—a full year before Opposer’s formation;” that “[n]either Applicant, nor Dr. Ellis

Opposition No. 91268880
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received any input from the other partners—founding or current—of Opposer
regarding the selection of the Mark, the graphics for the Mark or the accompanying
logo, or the engagement of the graphic designer either prior to or after the formation
of Opposer;” and that “to permit Opposer to form with the name ‘Fort Worth Brain &
Spine Institute,’ Dr. Ellis, as sole director of Applicant, provided Opposer with an oral
license to use the Mark.” Id. at 25 (citations omitted). According to Applicant, “[t]his
oral licensing agreement has been in place continuously for over 20 years and
represents a valid and binding agreement. Importantly, none of the founding
partners deny or have denied the existence of the agreement, and instead, have only
confirmed its existence.” Id. at 25-26 (citations omitted).
In its reply brief, Opposer responds that
[t]he record shows that no such oral license ever existed.
There exists no contemporaneous Opposer document that
references Applicant or the grant of any such license. In
fact, all of Opposer’s governing documents—the 2003
Application for Registered LLP, the 2003 Partnership
Agreement, the 2014 Amended and Restated Partnership
Agreement, and the 2003 Professional Association Services
Agreement—are completely silent as to Applicant, any
licensing relationship, or any licensing conditions, such as
quality control terms.
. . .
Multiple Opposer partners (founding and current) also
confirmed that they never requested permission from
Applicant to use the Mark and never understood Applicant
to be an owner much less a licensor.
. . .
Applicant’s suggestion that a decades-long license existed
but was somehow omitted from every operative
document—and was unknown to all partners except
Applicant’s sole member—belies ordinary commercial
practice and defies the documentary record. Rather, the

Opposition No. 91268880
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silence across all operative governance documents, coupled
with consistent partner testimony, is powerful evidence
that no license ever existed.
Id. at 8-9 (citations omitted).
C. Analysis
As discussed above, we must determine whether Applicant rebutted Opposer’s
prima facie showing of ownership of the FORT WORTH BRAIN & SPINE
INSTITUTE mark, based on Opposer’s admitted exclusive use of the mark for more
than 20 years, through proof by a preponderance of the evidence that such use was
only as Applicant’s licensee. See DowntownDC, 2024 WL 4449409, at *15-16; Olsman,
MacKenzie, 38 TTABVUE 39 n.136 (No. 91272167).
We begin by noting that the record shows that the putative mark owner and
licensor, Applicant “Fort Worth Brain and Spine Institute, PA,” is an entity that
appears to have existed only on paper. Applicant was formed by Dr. Ellis on February
19, 2002, and thereafter made various filings with the Texas Secretary of State. Ellis
Aff. ¶ 7; Ex. C (39 TTABVUE 2, 14-16). As discussed above, Dr. Ellis testified that
“[t]o permit Opposer to form with the name ‘FORT WORTH BRAIN & SPINE
INSTITUTE’, the name I used for my personal professional association (PA), I, as sole
director of Applicant, provided Opposer with an oral license to use the Mark that is
subject to this opposition,” Ellis Aff. ¶ 17 (39 TTABVUE 3), but he never testified that
he ever practiced medicine through Applicant Fort Worth Brain and Spine Institute,

Opposition No. 91268880
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PA,25 or under the FORT WORTH BRAIN & SPINE INSTITUTE mark, prior to
Opposer’s formation effective March 4, 2003. Indeed, Applicant effectively admitted
that neither it nor Dr. Ellis ever used the FORT WORTH BRAIN & SPINE
INSTITUTE mark prior to Opposer’s formation through Applicant’s amendment of
the claimed dates of first use in the opposed application from February 19, 2002, the
date of Applicant’s formation, to May 31, 2003, several months after Opposer’s
formation.26 Applicant was not involved in Opposer’s formation because Dr. Ellis
became a partner in Opposer through Thomas S. Ellis, M.D., FACS PA, not through
Fort Worth Brain and Spine Institute, P.A.
As Opposer notes, Applicant appears nowhere in any of the documents regarding
Opposer’s formation and subsequent operation under the FORT WORTH BRAIN &
25 As discussed below, Dr. Ellis has always practiced medicine as a partner of Opposer
through his other professional association Thomas S. Ellis, M.D., FACS PA.
26 It was Dr. Hubbard, not Dr. Ellis, who testified that when Opposer was formed, Dr. Ellis
“had previously been using that name [Fort Worth Brain and Spine Institute] since 2002.”
Hubbard Aff. ¶ 4 (41 TTABVUE 2). Although Dr. Hubbard recited that he had “personal
knowledge of, the facts stated within this Affidavit,” Hubbard Aff. ¶ 1 (41 TTABVUE 2), he
did not establish through his testimony that he had personal knowledge of Dr. Ellis’ activities
before the two began practicing medicine together after Opposer’s formation in March 2003
because he did not testify to a prior professional or personal relationship with Dr. Ellis. He
also did not testify about such a relationship on cross-examination, Hubbard Cross Tr. 8:21-
10:4 (45 TTABVUE 9-11), merely stating that “I think [Dr. Ellis] was the one who came up
with the idea of the name, and I’m assuming he copyrighted it,” Hubbard Cross Tr. 12:25-
13:1 (45 TTABVUE 13-14), that “Dr. Ellis at that time had the name of Fort Worth Brain &
Spine Institute, and we all agreed to that,” Hubbard Cross Tr. 13:21-22 (45 TTABVUE 14),
and that “Dr. Ellis came up with the name, he suggested the name, he had the name, and we
all thought that was good.” Hubbard Cross Tr. 14:9-10 (45 TTABVUE 15). Because Dr.
Hubbard did not establish his personal knowledge of Dr. Ellis’ or Applicant’s use of the FORT
WORTH BRAIN & SPINE INSTITUTE mark prior to Opposer’s formation, we do not credit
his one-sentence claim of such use. Against the backdrop of Applicant’s amendment of its
claimed dates of first use from February 19, 2002 to May 31, 2003, Dr. Ellis’ own silence on
that issue speaks volumes.

Opposition No. 91268880
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SPINE INSTITUTE mark, including the 2003 Application for Registered Limited
Liability Partnership, the 2003 Partnership Agreement, the 2014 Amended and
Restated Partnership Agreement, or the Professional Association Services
Agreements by which Dr. Ellis and Dr. Hubbard contracted with Opposer to provide
medical services. On this record, we find that Applicant, the putative mark owner
and licensor, has existed only on paper.
As discussed above, Dr. Ellis never testified that prior to Opposer’s formation, he
or Applicant practiced medicine under the FORT WORTH BRAIN & SPINE
INSTITUTE mark, only that he selected the trade name and service mark “that I
would use for my medical practice and took steps to adopt the trade name and Mark,”
Ellis Aff. ¶ 3 (39 TTABVUE 2), which appears to be a reference to the registration of
the “Fort Worth Brain and Spine Institute, P.A.” professional association with the
Texas Secretary of State in February 2002. He testified that he registered the domain
name fwbsi.com on February 4, 2003, about one month before Opposer’s formation,
Ellis Aff. ¶ 10 (39 TTABVUE 3), but he never testified that he or Applicant used the
domain name prior to Opposer’s formation.
Dr. Ellis also testified that “[i]n early 2003, I prepared the rendering for
Applicant’s Mark ‘Fort Worth Brain & Spine Institute’ and the accompanying logo,
and caused Applicant to engage Adelman Graphics for professional graphics and high
resolution files to be created.” Ellis Aff. ¶ 11 (39 TTABVUE 3). The invoice from
Adelman Graphics for the services referenced by Dr. Ellis is reproduced below:

Opposition No. 91268880
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Ellis Aff. Ex. F (39 TTABVUE 107). The invoice states that it is for “Logo Concepts &
Final Logo Setup,” and was issued to “FW Brain & Spine Inst.” at 1325 Pennsylvania,
Suite 890, which was not the address that is listed in Applicant’s Articles of
Association, Ellis Aff. Ex. A (39 TTABVUE 6), but was instead Opposer’s street
address at the time.27
The check with which Dr. Ellis claims Applicant paid the invoice is reproduced
below:
27 Opposer’s March 4, 2003 Application for Registered Limited Liability Partnership lists
Opposer’s principal office as “Suite 250, Harris Center, 1325 Pennsylvania Avenue, Fort
Worth, Texas 76104.” Ellis Aff. Ex. G (39 TTABVUE 109). In the March 19, 2003 Professional
Association Services Agreement between Opposer and Thomas S. Ellis, M.D., FACS PA,
which states that it is effective nunc pro tunc as of March 5, 2003, Opposer’s suite address at
1325 Pennsylvania Avenue is listed as “Suite 890.” Ellis Aff. Ex. H (39 TTABVUE 114). It is
self-evident that Opposer either moved into Suite 890, or began using that suite in its mailing
address, at some point in early March 2003, before Adelman Graphics issued its invoice to
“FW Brain & Spine Inst.” at that suite address.

Opposition No. 91268880
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Ellis Aff. Ex. F (39 TTABVUE 106).28 The check is dated March 11, 2003, after
Opposer’s formation, is not pre-printed with “Fort Worth Brain and Spine Institute,
P.A.” as the account owner or with the address of the account owner, and only bears
the handwritten notation by Dr. Ellis that Applicant is the payor.
When the check was issued, Applicant had been in existence for more than a year.
One would expect that a professional association in active operation for more than a
year would have its own bank account with pre-printed checks displaying its name
and business address, but Dr. Ellis never testified that he wrote the check on
Applicant’s bank account, only that he “personally signed the check written by ‘Fort
Worth Brain and Spine Institute, P.A.’ on which Applicant paid Adelman Graphics’
invoice for services,” Ellis Aff. ¶ 13 (39 TTABVUE 3), emphasizing that “such invoice
was paid after Opposer was formed.” Ellis Aff. ¶ 13 (39 TTABVUE 3) (emphasis in
bold here in italics in the original). Given the lack of evidence of Applicant’s active
operation prior to Opposer’s formation, and the fact that Applicant had nothing to do
28 Although Applicant filed an image of the check showing what appear to be the account
number and the bank routing number, we have redacted the numbers.

Opposition No. 91268880
- 46 -
with Opposer’s formation, it is at least equally plausible that the check was written
not on an account owned by Applicant, but rather on a new account owned by
Opposer, the entity that had received the invoice to “FW Brain & Spine Inst” at its
business address, for which Opposer did not yet have pre-printed checks.29
But even if the check was actually written on Applicant’s account, we find it more
likely than not that the Adelman Graphics transaction was between Adelman
Graphics and Opposer, not between Adelman Graphics and Applicant, in
contemplation of prospective use of the logo by Opposer, together with the mark
FORT WORTH BRAIN & SPINE INSTITUTE, and that Applicant had no
involvement in the transaction.30
As discussed above, Dr. Ellis testified that when Opposer was formed, “[a]cting as
Applicant’s sole director, I caused Applicant to grant Opposer a license for use of the
Mark on two conditions: (1) I, Dr. Ellis, through my personal professional association,
must remain a partner in Opposer (LLP) while the Mark is used,” and “(2) that
Applicant, through me as its sole director, maintains control of the manner in which
the Opposer (LLP) uses the Mark.” Ellis Aff. ¶ 18 (39 TTABVUE 3).31 The various
29 There is no record evidence that Applicant ever wrote another check for any goods or
services, such as for rent for Opposer’s premises or any other expenses of Opposer’s (or
Applicant’s) business.
30 Like the opposed application prior to its amendment, the June 2, 2020 application that
matured into Applicant’s registration of the logo mark claimed dates of first use anywhere
and first use in commerce on February 19, 2002, the date of Applicant’s formation. 50
TTABVUE 46-50. These dates of first use, like their counterparts in the opposed application,
are obviously incorrect because the record shows that the logo was developed in 2003.
31 A “licensor must control the quality of goods [or] services produced under the mark by the
licensee,” Sock It to Me, Inc. v. Fan, No. 91230554, 2020 WL 3027605, at *5 (TTAB 2020)
(citing Visa, U.S.A., Inc. v. Birmingham Trust Nat’l Bank, 696 F.2d 1371, 1377 (Fed. Cir.
1982)), not merely the manner of use of the licensed mark. With one nominal exception

Opposition No. 91268880
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agreements to which Opposer has been a party during its two decades of use of the
FORT WORTH BRAIN & SPINE INSTITUTE mark belie Dr. Ellis’ testimony.
The 2003 Partnership Agreement stated that “[t]he name of the Partnership shall
be FORT WORTH BRAIN & SPINE INSTITUTE, L.L.P. (the ‘Partnership’)” and that
the “Board of Managers may change the name of the Partnership from time to time
and from time to time may adopt such trade or fictitious names as they may
determine appropriate,” Hubbard Ex. 2 (45 TTABVUE 54), but it otherwise did not
discuss the mark and name, and made no mention of any oral license from Applicant,
even though Dr. Hubbard testified that the license was simultaneously granted to
Opposer. Hubbard Cross Tr. 36:20-23 (45 TTABVUE 37). The 2003 Partnership
Agreement contained detailed provisions regarding the equality of partners, the
partnership’s Board of Managers, and the expulsion and withdrawal of partners, but
it did not provide that upon the expulsion or withdrawal of Dr. Ellis, the partnership
would cease operating under the name and mark FORT WORTH BRAIN & SPINE
INSTITUTE, or that Dr. Ellis had the right to control the use of the mark, much less
the quality of the medical services rendered by the several partners. The 2003
Partnership Agreement also contained a “Complete Agreement” provision stating
that “[t]his Agreement shall constitute the entire agreement among all the Partners
and between the Partners and the Partnership with respect to the matters addressed
herein.” Hubbard Tr. Ex. 2 Paragraph 17.4 (45 TTABVUE 75).
discussed below, Dr. Ellis never testified that under the alleged oral license, he maintained
control over the quality of the medical services rendered by Opposer’s several partners.

Opposition No. 91268880
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Dr. Ellis’ Professional Association Services Agreement with Opposer, signed a few
days later through his professional association Thomas S. Ellis, M.D., FACS PA and
effective nunc pro tunc to March 5, 2003, Ellis Aff. ¶ 16; Ex. H (39 TTABVUE 3, 113-
30), is also silent about ownership of the FORT WORTH BRAIN & SPINE
INSTITUTE mark, Opposer’s cessation of use of the mark upon termination of the
Professional Association Services Agreement, and Dr. Ellis’ quality control rights,
and it also contains a paragraph captioned “Entire Agreement” stating that “[t]his
Agreement represents the entire agreement of [Opposer] and P.A. with respect to
P.A.’s engagement by [Opposer] and supersedes all prior agreements relating to the
same subject matter.” Ellis Aff. Ex. H Paragraph 10.3 (39 TTABVUE 123-24).
Like its 2003 predecessor, the 2014 Amended and Restated Partnership
Agreement to which Dr. Ellis and Opposer’s four witnesses were parties at the time
of trial contained detailed provisions regarding all aspects of the partnership, but it
is silent regarding any oral license of the use of the FORT WORTH BRAIN & SPINE
INSTITUTE mark, the effect of the expulsion or withdrawal of Dr. Ellis,32 or
Applicant’s claimed right to control the manner of use of the mark or the quality of
the medical services rendered by the several partners. The 2014 Amended and
Restated Partnership Agreement also contained a provision captioned “Complete
Agreement” that stated that “[t]his Agreement shall constitute the entire agreement
32 The 2014 Amended and Restated Partnership Agreement contains provisions making Dr.
Ellis a perpetual member of the partnership’s Board of Managers “so long as he or his
Professional Association is a Partner of the Partnership.” Alford Rebut. Decl. Ex. 1 (49
TTABVUE 49 (Paragraphs 9.1 and 9.1(2)). It is silent regarding the operation of the
partnership, and the partnership’s use of its name and mark, after his departure.

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among all the Partners and between the Partners and the Partnership with respect
to the matters addressed herein.” Alford Rebut. Decl. Ex. A Section 16.4 (49
TTABVUE 55).
The 2003 Partnership Agreement and the 2014 Amended and Restated
Partnership Agreement are very detailed and both state that they are the “entire
agreement” among the partners with respect to the operation of the partnership. It
strains credulity that there would also be a separate, oral agreement between the
partners, and Applicant, a complete stranger to the two Partnership Agreements,
involving matters as fundamental as the circumstances under which the partners
may use and continue to use the mark and name of the partnership, and the supposed
right of that stranger entity, operating through one of the equal partners to the
Partnership Agreements, to control even the use of the mark, much less the quality
of the medical services to be provided by the other equal partners. In view of what is
said (and, significantly, what is not said) in the 2003 Partnership Agreement and in
Dr. Ellis’ Professional Association Services Agreement, we find that the evidence does
not support a finding that upon Opposer’s formation, it became a party to any
separate oral license allegedly granted by Applicant.33
33 The “Complete Agreement” clauses in the 2003 Agreement, the Professional Association
Services Agreement, and the 2014 Amended and Restated Partnership Agreement are
obviously inconsistent with the existence of any such license because they recite that the
three written agreements are the complete agreements between the parties with respect to
Opposer’s operations. None of these “complete agreements” requires Opposer to cease use of
the FORT WORTH BRAIN & SPINE INSTITUTE mark upon Dr. Ellis’ departure, or permits
Dr. Ellis to control the manner of use of the mark, much less the quality of the medical
services rendered by his equal partners under the mark.

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The record evidence regarding Opposer’s operation following its formation in
March 2003 also belies Dr. Ellis’ testimony. All of Opposer’s witnesses testified that
they were never told upon entering the partnership that Applicant even existed, that
there was any relationship between Opposer and Applicant, or that any trademark
licensing arrangement existed. Alford Decl. ¶ 3 (49 TTABVUE 2); Lee Decl. ¶ 3 (48
TTABVUE 2); Lapsiwala Decl. ¶ 3 (47 TTABVUE 2); Siadati Decl. ¶ 4 (46 TTABVUE
2).
As discussed above, Opposer’s witnesses admitted during their discovery
depositions in 2021 that they did not know what happened when Opposer was formed
in 2003 because they were not then associated with Opposer, and that they could not
point to any specific evidence refuting Applicant’s claim of a license, and several of
the witnesses also testified that they had no reason to disbelieve Dr. Ellis and Dr.
Hubbard’s testimony regarding mark ownership and the existence and terms of a
license.34 But Applicant did not elicit testimony from the witnesses, or present other
evidence, contradicting their testimony that they were not told about Applicant and
any trademark licensing arrangement when they joined Opposer as a partner. If the
oral license that Dr. Ellis described actually existed, it again strains credulity that
new partners would not have been told about it upon entering the partnership,
especially when the written agreements by which they became partners said nothing
34 “[A]s the trier of fact, we are entitled, in fact obligated, to weigh the evidence,” and to make
credibility determinations. Société des Produits Nestlé S.A. v. Cándido Viñuales Taboada,
No. 91232597, 2020 WL 4530518, at *9 (TTAB 2020) (citations omitted). We find here that
based on the objective conduct of the parties, and Dr. Hubbard’s lack of personal knowledge
of certain matters, there are reasons to disbelieve Dr. Ellis’s testimony and Dr. Hubbard’s
testimony as to the existence of the oral license.

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about any such license and never mentioned Applicant. The license provisions that
Applicant claims—Dr. Ellis’s right to control the manner of use of the mark, and the
partnership’s obligation to cease use of its mark if Dr. Ellis left—would have been
material to each prospective new partner’s decision to join the partnership, and the
failure to disclose them might have exposed Dr. Ellis and Applicant to legal liability.
We credit the witnesses’ uncontradicted testimony that they were never told about a
license from Applicant or about Applicant itself.
As discussed above, Dr. Ellis testified that he had the right to control “the manner
in which the Opposer (LLP) uses the Mark,” Ellis Aff. ¶ 18 (39 TTABVUE 3), but he
never testified that he had the right to control the quality of the medical services
provided by each of Opposer’s former and current partners under the mark, which is
the essence of a license. Sock It to Me, 2020 WL 3027605, at *5. The latter form of
control is what matters, and the objective evidence shows that it was never exercised.
Dr. Siadati, who had been affiliated with Opposer for 18 years at the time of trial,
described Opposer as “organized like five different silos under one roof” and that
“[e]ach of the five physicians in [Opposer] have our own clinic staff, medical
assistants, and schedulers and run independent practices within [Opposer].” Siadati
Decl. ¶¶ 2, 6 (46 TTABVUE 2-3). As discussed above, each of Opposer’s witnesses
testified, without contradiction, that Applicant and Dr. Ellis have never exercised
control over the quality of each witness’s medical services provided within the
witness’s independent practice, that each witness has always exercised independent
professional judgment in the rendition of medical services, and that each witness has

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never even sought permission from Dr. Ellis to use the FORT WORTH BRAIN &
SPINE INSTITUTE mark. Alford Decl. ¶ 4 (49 TTABVUE 2-3); Lee Decl. ¶ 4 (48
TTABVUE 2-3); Lapsiwala Decl. ¶ 4 (47 TTABVUE 2-3); Siadati Decl. ¶¶ 6-7 (46
TTABVUE 3). Their testimony makes clear that they were never treated as and never
acted as licensees under the control of Dr. Ellis with respect to the manner of their
use of the mark or, more importantly, the quality of their medical services.
There is no evidence that contradicts any of their testimony. As discussed above,
Dr. Hubbard testified that “Dr. Ellis, on behalf of the PA, would regularly discuss,
monitor, approve and ultimately control how the name was being used,” that
“[e]xamples of this include how the LLP used the mark on the website, its letterhead,
and on its office space,” and that “[t]here is no question in my mind that during my
tenure with [Opposer] that [Applicant] exercised control over [Opposer’s] use of the
name, ‘Fort Worth Brain and Spine Institute.’” Hubbard Aff. ¶ 6 (41 TTABVUE 3).
But on cross-examination, Dr. Hubbard admitted that the other members of a medical
partnership such as Opposer do not control how an individual member treats
patients, Hubbard Cross Tr. 28:17-29:13 (45 TTABVUE 29-30), and that he never had
to ask for permission from Applicant to run his medical practice or even to use the
FORT WORTH BRAIN & SPINE INSTITUTE mark. Hubbard Cross Tr. 29:10-17 (45
TTABVUE 30). He further acknowledged that his Professional Services Agreement
required him to “exercise his . . . best independent professional judgment regarding
the treatment of patients at all times,” and that he always did so. Hubbard Cross Tr.
28:8-25 (45 TTABVUE 29). Based on his testimony, it is clear that Dr. Hubbard also

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was never treated as, and never acted as, a licensee under the control of Dr. Ellis or
Applicant with respect to the manner of use of the mark, or, again more importantly,
the quality of his medical services.
In that regard, Dr. Ellis testified only that he has “maintained sole control of the
original high-resolution graphics as prepared by Adelman Group [sic] in 2003 and
such graphics are still the only ones used today,” that he has “managed Opposer’s use
of the Mark by requiring approval of any use of the Mark on marketing materials
used by Opposer and policing third-party usage of the Mark to avoid confusion in the
marketplace,” and that he has “been able to oversee virtually every aspect of
Opposer’s use of the Mark and the services provided thereunder.” Ellis Aff. ¶¶ 19-21
(39 TTABVUE 4).35 His vague statement that he has “been able to oversee virtually
every aspect of Opposer’s use of the Mark and the services provided thereunder” falls
far short of establishing that he has controlled the quality of the medical services
rendered by his former and current partners for more than 20 years.36 At most, his
35 As discussed above, Dr. Lapsiwala testified in his discovery deposition that Dr. Ellis was a
“micro-manager” and was heavily involved in all decisions related to Opposer, Lapsiwala Tr.
42:25-43:5 (35 TTABVUE 30-31), but as noted above, Dr. Siadati testified at trial, without
contradiction, that he and Opposer’s other witnesses are also involved in the management of
Opposer’s legal, financial, and strategic matters. Siadati Decl. ¶ 5 (46 TTABVUE 3). The
relevant issue is, of course, not whether Dr. Ellis micro-managed the business decisions made
by Opposer, but rather whether he controlled the quality of the medical services rendered by
Opposer’s former and current partners.
36 In its brief, Applicant argues that “the parties’ close working relationship, Dr. Ellis’s
managerial position along with the oversight that comes with such a position, and Dr. Ellis’s
common ownership of Applicant and Opposer, all contributes [sic] to a finding of reasonable
quality control.” 66 TTABVUE 41 (citations omitted). But that is not the nature of the control
claimed by Dr. Ellis in his testimony. As discussed above, he testified that he has in fact “been
able to oversee virtually every aspect of Opposer’s use of the Mark and the services provided
thereunder.” Ellis Aff. ¶¶ 19-21 (39 TTABVUE 4). The record does not support that claim.

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testimony, and that of Dr. Hubbard, show that Dr. Ellis may have engaged in
cosmetic management of the manner of Opposer’s use of the mark as the keeper of
what he called the “high-resolution graphics prepared by Adelman Graphics in 2003,”
Ellis Aff. ¶ 19 (39 TTABVUE 4), but the record does not show that he ever controlled
the quality of the medical services rendered by his partners under the mark.37
In summary, Applicant, the putative mark owner and licensor, does not appear to
have operated actively, if at all, during the more than two decades since its formation;
there is no evidence that Dr. Ellis or Applicant ever used the FORT WORTH BRAIN
& SPINE INSTITUTE mark in connection with the practice of medicine prior to
Opposer’s formation; there is no mention of a separate license of the mark in any of
the documents pertaining to Opposer’s formation and operation, when a license would
have been an obvious and expected subject to include in those documents, which
stated that they were the complete agreements between the parties; new partners in
Opposer were never told about Applicant or a license; Dr. Ellis, as the putative
representative of Applicant, never acted like a licensor controlling the quality of the
medical services rendered by his partners individually or collectively; and the
members of Opposer, including Applicant’s own witness Dr. Hubbard, never acted
like licensees whose medical services were controlled or even monitored by Applicant
or Dr. Ellis. In short, the objective conduct of the parties, “what they said and did,”
37 In that regard, there is no evidence that as the “elder” physician within Opposer, Dr. Ellis
ever did anything to assure at least a uniform level of quality of the medical services provided
by each of his former and current partners under the FORT WORTH BRAIN & SPINE
INSTITUTE mark, such as by setting minimum standards for their continued professional
education or certifications, or requiring their participation in medical organizations or
programs.

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Gallier, 171 F. Supp. 3d at 567, and also what they did not say and did not do, fails
to show a “meeting of the minds” between Opposer and Applicant involving an offer
and an acceptance that resulted in the formation of the alleged oral license on agreed-
upon terms. Id.
Applicant failed to rebut Opposer’s prima facie showing that when Applicant filed
the opposed application in 2020, Opposer, not Applicant, was the owner of the mark
by virtue of Opposer’s exclusive use of it, and that Applicant had never used the mark
in commerce prior to filing. Opposer thus proved its two claims of non-use and non-
ownership by a preponderance of the evidence.
Decision: The opposition is sustained on Opposer’s claims of no bona fide use in
commerce by Applicant prior to the filing date of the opposed use-based application
and Applicant’s lack of ownership of the applied-for mark.