Elevations Credit Union appeals decision about its trademarks

BOULDER — Elevations Credit Union has lost a court case that attempted to protect its trademarks from another credit union with a similar name. However, the Boulder-based Elevations filed an appeal of the decision Thursday in the 10th Circuit Court of Appeals in Denver.

The legal disagreement stems from a decision in 2019 by Box Elder Credit Union, which operates in three counties of Utah, to change its name to Elevate Federal Credit Union.

Elevations sent cease-and-desist letters to Elevate, and Elevate filed a lawsuit against Elevations in U.S. District Court in Utah on March 4, 2020, seeking a declaratory judgment. Elevations counterclaimed.

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Elevate Federal is a small credit union in comparison with Elevations. Elevate had 13,000 members, court documents show. Elevations had 151,150 active members. It has used the Elevations moniker since 2006; it was previously the University of Colorado Federal Credit Union, organized in 1953.

While Elevations does not do business in Utah and Elevate does not do business in Colorado, customers of each do, and potential customers have access to both credit unions’ websites through internet searches. Elevations said in the lawsuit that it does have members living in the Utah counties where Elevate makes its home — 16 at the time of the filing. About 41,000  Elevations’ customers used Elevations services while in Utah, including 350,000 credit-card transactions and 5,000 ATM transactions during a period cited in the lawsuit.

Elevations engaged an expert witness to conduct a study to see whether confusion between the trademarks existed, and the expert concluded that there was some level of confusion. The court, however, granted a motion to exclude the expert’s testimony. It also determined that Elevations’ attempts to exclude expert testimony brought by Elevate were moot. 

The court did acknowledge five documented cases of confusion, including one in which an Elevate Federal employee tried mistakenly to apply for an Elevations loan online. In none of the five cases, however, did business get transacted before the confusion was discovered, the court said.

Judge Dale Kimball ruled that the five cases of confusion were “de minimis,” or too minor to merit consideration.

“The likelihood of confusion does not exist between EFCU and Elevations’ marks,” he wrote in his decision.

Elevations seeks in its appeal to have the case reviewed and expert testimony accepted. 

An Elevations spokesperson declined comment because the case is still active.

The original case was 20cv0028 filed in U.S. District Court in Utah. The appeal is 22-4029 in the 10th Circuit Court of Appeals.