Joel English, Managing Partner at BVK, presented further insight on health brand architecture at the SHSMD annual conference last week in Seattle.

Brand architecture defined.  Brand architecture is how all the pieces of a brand and its value promise fits together.  Healthcare brands can include many brands components.  Joel provided the following example of a fictitious health brand ecosystem:

  • Driver Brands:  Anchor University Hospital – part of True Health
  • Strategic Brands: Anchor Medical Group
  • Endorser Role: True Health
  • Silver Bullet:  Anchor Burn Care
  • Sub Brands:  Anchor Health Plan;  Anchor Visiting Nurses

Types of brand architecture.

  • Branded House.  The main, driver brand that drives other brand business units.  An example is Virgin and Virgin Mobile.
  • Hybrid Brands.   Both the main (endorser) brand and the sub brand play a driver role.  An example is Marriott, which has Residence Inn (by Marriott) and Courtyard (by Marriott).
  • House of Brands.   A house of brands is where there is an umbrella brand that owns several subordinate, individual brands.  An example is Unilever and all of its various consumer brands.

No matter what brand architecture is selected, it is advisable for health care systems and providers to take the following steps as an integral part of its naming taxonomy.

Trademark clearance.   For all names, slogans, and logos that will be used, a full trademark search should be conducted.  A proper search includes a search of the USPTO records as well as common law, unregistered third-party uses.  Why?  Because under U.S. law, trademark rights vest at use, not registration.  Therefore, a competitor could sue you for trademark infringement based on a federal registration or its own unregistered trademark use.

Apply for registration.   A determination should be made whether the trademarks to be adopted or used constitute protectable trademark matter.  If a qualified trademark attorney determines this is the case and that the search revealed no problematic third-party trademarks, then a federal trademark application should be prepared and filed.   Note that U.S. applications may be based on either existing use or a bona-fide intention to use in situations where the trademark and associated goods or services are still in development. 

Develop Brand Usage Guidelines.   Proper brand usage guidelines serve two purposes:  brand uniformity and legal protection and compliance.   Both are equally important to the well-being of a healthcare brand.

Editor’s Note:  To discuss brand clearance and protection for your health care brands, you may contact James Hastings at Collen.

The SHSMD annual conference continues with a great health brand communications presentation by Joel English, Managing Partner of BVK.  Joel succinctly shared the most important thing that every health marketer should know:

The valuation of a healthcare system’s brand is the highest asset on its balance sheet.

Here are some things to remember in protecting the integrity of your healthcare brand:

Health brands are goodwill.  Your health brand is an intangible asset. In the healthcare context, a brand includes health system and facility names, marketing campaign names, slogans, and logos.  It also includes marketing copy, images, and proprietary research, products and services.  A healthy brand is the result of cumulative goodwill cultivated at great cost and expense to an organization.

Health brands can be injured.   Healthcare brands, like other brands, are not immune to damage.  In the health marketing context, this often is the result of failure to follow HIPAA marketing rules, trademark and copyright clearance, or making unsubstantiated advertising claims.  So damage to a health brand is not just about attorney’s fees and monetary damages; it is about potential injury to your reputation.

Brand Health is your responsibility.   According to Joel, a brand is the responsibility of all members of the healthcare organization; including their outside agencies, and everyone who has contact or who influences an organization’s customers and communities.  Brand is the unified theory of everything; the context of how we act and communicate.

Editor’s Note:  Healthcare brands spends millions of dollars per year on marketing and advertising.  The overall goal of such efforts is to strengthen and differentiate the brand among relevant consumers.  Done right, health brand marketing can result in greater revenue and improved brand equity.  But if healthcare organizations fail to clear brand names or implement HIPAA marketing and related compliance training, their brand equity could quickly suffer from injury to brand reputation.  This is in addition to potential six-or seven figure monetary damages and attorney’s fees that could result from unaddressed marketing risks.

This is part of a continuing series on health trademark compliance and training.  This installment reviews trademark basics and clearance considerations.

Many healthcare systems and providers still lack a basic understanding of how health trademarks are cleared, approved, and registered.  The root cause if often the failure of employee education and compliance training.   When health providers fail to properly clear the use or registration of a trademark before commencing such use, the risk to the organization almost always increases.  Here are some important things to remember.

Trademark Definitions.  A trademark is any word or symbol used to distinguish the goods or services of one party from those of another party.  A “service mark” is a trademark that is used exclusively in connection with services.  For example, CVS HEALTH may be a service mark for health and wellness education and a trademark for contact lens solution. Examples of trademarks that are eligible for protection include:

  1.   Word marks.  Word marks (without any logo or design element) often provide the broadest trademark protection.  This is because word marks can be used together with various logo or font variations at the brand owner’s discretion.  Examples include Anthem, Cleveland Clinic, Cardinal Health, and Johnson & Johnson.  When launching a new health product or service, it is often advisable to seek registration of the word mark alone in addition the word mark and combined design logo.
  2.   Logos.  Design marks are commonly referred to as logos.  These can be registered either alone (without any words) or in combination with the brand name to which it is associated.  Trademarks that incorporate logos can either be filed in black and white or in color.  Of the two, black and white affords the broadest trademark protection.
  3.   Slogans. Taglines and slogans are considered to be trademarks.  Like other forms of trademarks, taglines and slogans may be registered so long as they are not merely descriptive, generic, or cannot function as a trademark.

Trademark Search Advisory.  Prior to adopting a trademark for any goods, services, or marketing campaign, it is advisable to conduct a full search of the U.S. Patent and Trademark Office records and common law listings to determine the availability of the trademark for registration and use.  Once the trademark search is performed, it should be reviewed by a qualified health trademark attorney.  The attorney should provide a written opinion as to whether the proposed trademark is available for use and registration.   If the search results indicate a potential likelihood of confusion with a third-party trademark, then alternatives should be suggested on how to best mitigate any additional risks.

Health trademarks are of vital importance to the value of healthcare brands.  A recent study by Healthcare Global revealed that CVS Health was ranked the top healthcare brand in the United States based on revenue, with annual sales of $139.4 billion. Yet the availability of a health trademark for registration and use is never guaranteed.  It is therefore surprising that numerous U.S. health and wellness providers fail to properly conduct a trademark clearance search prior to launching a new product or service that could be worth millions of dollars in revenue.

The United States Patent and Trademark Office recommends conducting a trademark search of existing trademarks prior to filing a trademark application.

This is how the trademark application search and application process generally works.

  1.   Trademark search.   A trademark search of the USPTO database is the first-step to determine whether a mark is available for registration and use.  The search should consist of existing federal trademark applications and registrations as well as common law listings of unregistered marks that are not contained in the USPTO records.
  2.  Trademark clearance letter.   After the search is conducted, a qualified trademark attorney should review the search results for, among other things, whether the desired trademark is confusingly similar to any preexisting registrations or third-party uses.   The attorney should then create a written opinion setting forth whether the proposed trademark is available for use and registration.  The opinion should make recommendations on the business risk of proceeding or not proceeding.  If the risk is too great, then an alternative trademark should be considered.
  3.   Prepare and file application.   Once trademark clearance is performed, the trademark application should be prepared and filed with the USPTO.  Applications may be based on either use of the trademark in commerce, or if is not yet being used, an intent to use the mark.  The application must comply with all other requirements, including a statement that the applicant is the rightful owner of the mark and that it does not believe that any other party has the right to use the proposed trademark.
  4.  Trademark examination process.   Every trademark application is assigned to an Examining Attorney in the USPTO.  The Examiner will conduct a search of prior applications and registrations contained in the USPTO database.  The Examiner will also review the application for additional procedural and substantive requirements, and may initially refuse the application based on a likelihood of confusion with a preexisting trademark application or registration.
  5.   Additional requirements.   If the Examiner initially refuses the application, the trademark attorney can submit arguments against the grounds for refusal and request that the registration issue.  If the application is not refused and all other requirements are fulfilled, then the trademark will issue in due course.  Each trademark registration has a term of ten years, with subsequent ten year renewal periods should all statutory requirements be met.  In addition, the trademark owner will be required to file an affidavit showing continued use of the trademark in commerce between the fifth and sixth year post-registration.

Editor’s Note:  A full trademark search and clearance opinion letter should be part of an overall health brand risk and compliance program. To discuss how to develop a plan, or to conduct a health trademark search, please contact the author.

Digital health apps are growing in popularity.  According to a recent study, there are more than 325,000 mobile health apps available for upload to smart phones or tablets.

The marketing of digital health apps to consumers brings with it numerous legal compliance obligations.  Depending on the app and its functions, several federal laws and regulations may apply.  These include:

Health Insurance Portability and Accountability Act (HIPAA)

The U.S. Department of Health & Human Services (HHS) enforces the HIPAA rules, which protect the privacy and security of certain health information.  The HIPAA laws also require certain entities to provide notifications of health information breaches.

Federal Food, Drug, and Cosmetic ACT (FD&C Act)

The FDA enforces the FD&C Act, which regulates the safety and effectiveness of medical devices, including certain mobile medical apps.  Depending on the nature of the health app, FDA oversight may apply.  This may include health apps that pose a higher health risk if they do not perform as intended.

Federal Trade Commission Act (FTC Act)   

The FTC Act prohibits deceptive and unfair trade practices affecting interstate commerce.   These acts may include those relating to false and misleading health claims, representations regarding the performance of the app, as well as claims that impact consumer data security and privacy.

Health Breach Notification Rule (FTC)

This law applies to certain businesses that are required to provide notifications to consumers after a breach of personal health record information.

Lanham Act

The Lanham Act is the primary federal law that governs the registration and use of trademarks in the United States.  Health app providers must be sure that any trademarks that they adopt are properly cleared.  If third-party trademarks are used, then such uses should be permissive or in the context of fair use exceptions.

U.S. Copyright Act

U.S. copyright laws protect original works on authorship fixed in a tangible medium.  The written code of mobile health apps are considered literary works subject to registration, protection, and enforcement under the Copyright Act.

U.S. Patent Act

Certain digital health apps and its associated technology may be patentable.  This will depend, in large part, on the nature of the technology and whether the invention is new and non-obvious.

Editor’s Note:  Developing and marketing any health app requires careful legal compliance review.  To discuss your digital health app requirements, feel free to contact the author. 

A recent article by Healthcare Dive reports that nearly 90% of companies pay employees to participate in wellness programs.  This is a good thing.  Yet when it comes to ensuring their own brand protection health, most health brands and providers ignore their own advice.

Consider these legal health marketing scenarios:

Trademarks.  For every new health brand name or slogan that is adopted, chances are that most have not been properly cleared by a trademark attorney.   This is despite the fact that services rendered under the new trademark will in all likelihood earn millions of dollars of revenue for a provider and have six figure marketing budgets.  So how valuable is a healthcare name?  Certainly more than the few thousand dollars it will cost to properly search, clear, and apply to register the newly adopted trademark.

Copyright.  Marketing agencies produce millions of dollars in digital and print collateral for healthcare systems and providers annually.  Yet for many health brand owners, there is no legal compliance process in place to make sure that all creative materials comply with U.S. copyright laws and do not infringe the rights of third-parties.  And few have any system in place to catalog and protect all proprietary copyrightable subject matter and marketing materials on behalf of healthcare clients.

Social media.  The use of social media to promote patient testimonials and population health initiatives is increasing. With this growing trend is a heightened legal risk to health providers.  The social media marketing and promotional efforts of health providers must adhere to HIPAA Marketing Compliance and privacy rules as well as other federal laws applicable to truthful marketing and advertising.

As healthcare marketers continue to increase their spending on advertising, the associated legal risks of such activities continue to rise.  This is why it is vital for both healthcare providers and agencies to implement proactive legal wellness programs to prevent damage to their valuable brands and goodwill.

A proper trademark search should be the starting point of any healthcare branding campaign.

A trademark is any name, symbol, or slogan used in connection with the marketing of goods and services.  Trademarks, also known as brand names, serve to differentiate the goods and services of one company from those of its competitors.  In the marketing of healthcare, trademarks play a vital role in creating value and goodwill for hospitals and related providers.  To determine whether a trademark is available for registration and use, the following steps should be followed:

  1.  Conduct a trademark search.    A trademark search consists of an examination of the U.S. Patent and Trademark Office records, state trademark registrations, and common law unregistered uses of the proposed mark.
  2.  Review the search results.   A qualified trademark attorney should review the search results to determine whether there may be any risks in proceeding.  Such dangers may include pre-existing registrations or prior uses that may be confusingly similar to the proposed mark.  At this time, it should also be determined whether the desired trademark may be denied registration for other reasons.  Examples include that the mark is merely descriptive of the goods or services or that it does not function as a trademark.
  3.  Conduct marketplace investigations.  If the trademark search results reveal third-party registrations or uses that are of concern, a discrete marketplace investigation into whether the third-party is currently using the trademark should be undertaken.   A good place to start is to review the third-party’s website and publicly available materials to determine the extent and scope of its use.
  4.   Prepare the trademark application.   Trademark applications filed with the U.S. Patent and Trademark Office are generally based on either use of the mark in commerce or an intent to use the mark in commerce.  An intent to use application is ideal for healthcare providers that are in the brand conception stage and wish to reserve its rights in the trademark prior to launch.
  5.   File and monitor.   Once the trademark application is filed, the USPTO will review the application for substantive and procedural requirements.  It will also conduct a search of the US Patent and Trademark Office records to determine if there are any grounds to initially refuse registration.   If the trademark application is initially refused registration, the applicant can file a response to the Office Action within six months of the initial refusal.
  6.   Establish proof of use.    Once the application is approved for registration, it will be published in the Official Gazette of the U.S. Patent and Trademark Office.   If no third-party objects to the application within the 30 days for doing so, a notice of allowance will issue.  If the application was based on use, it will proceed to registration.  If it was based on an intent to use, the applicant must submit a statement of use attaching a specimen of use of the mark on the applied for goods and services.  Once the statement of use is accepted, the application will then mature to registration.

A recent survey by True North Custom confirms that content marketing continues to play a growing role in the marketing of healthcare brands.

The 2018 State of Healthcare Content Marketing Report provides a fascinating look into what healthcare marketers deem important.  It is a must read for those who wish to stay on top of trends and determine what is working and not working in the marketplace.  That being said, there is one question that we recommend be included in next year’s report:

Do you have a process in place to make sure that your marketing content is legally compliant?

Why should your organization have a marketing legal review process?  Here are some things to consider:

  • The cost of litigation can be expensive.   Any healthcare provider can attest to how litigation fees can severely impact the bottom line.  While healthcare system legal efforts often focus on regulatory and quality of care issues, missteps in marketing and brand protection can be just as deadly to brand reputation and budgets.
  • Brand reputation is worth the investment.   Brand names and reputation are some of the most valuable assets of any company, including those of healthcare providers.  So why not be proactive in protecting them?  When an issue arises that could tarnish your healthcare brand, it is often too late.
  • Marketing compliance makes sense.   When it comes to risk mitigation, an ounce of prevention is worth a pound of cure.  HIPAA marketing compliance, brand clearance, the proper use of patient testimonials, and other issues continue to face healthcare marketers every day.

Getting started with a Marketing Compliance Program

If you do not already have a health marketing compliance program in place, here’s what you can do:

  • Conduct a health marketing checkup.   Provide your brand protection attorneys with a selective sampling of your marketing materials.  Be sure to include examples from various channels, including social media, newsletters, video, and direct mail marketing.
  • Identify risk gaps in your marketing plan.   Your attorneys should be able to provide you with a diagnostic tool that helps identify marketing problem areas, together with recommendations to remediate problems and mitigate risks.
  • Make compliance easy to understand.   A red light, yellow light, and green light chart that indicates brand protection and marketing compliance risks from low to high often works best.  Recommendations should also be color-coded, based on low-priority to high priority tasks.

An effective healthcare brand protection and marketing compliance program need not be expensive or complicated.  But it is important that healthcare marketers partner with qualified health brand attorneys.  That way, there is a greater chance that your compliance efforts will be embraced by your organization and external marketing partners.  By doing so, it will help ensure the overall success of your health marketing strategies.