Digital health

Your hospital branding assets are the most valued asset on your balance sheet.

Consumer companies have long known the advantages of having a strong brand.  Healthcare systems are starting to appreciate this too.  Creating and building a strong healthcare brand generally has three major economic benefits:

  •  Lower customer acquisition costs
  •  Higher customer retention and loyalty; and
  •  Greater referrals from existing patients and professional colleagues

With health systems facing increasing competition and lower margins, it is essential to identify and capture all of your hospital branding assets.  By doing so, you can convert some of your marketing expenditures into value.  Brand

Where to start.   To identify and capture more of your hospital branding assets, first take an inventory of all your brand identity and marketing output.   Assets and materials eligible for protection can include:

  1.  Eligible trademarks.   A trademark is more than just your health system name.  Trademarks are any name or symbol used to differentiate your products or services from those of another company.  Trademarks can include names, design logos, slogans, sub-brand names, marketing campaign names or any other indicator of source.
  2.  Eligible copyrightable materials.   U.S. copyright protection extends to any original expressions of an idea.   There is a wealth of marketing subject matter that is eligible for copyright registration.  This includes marketing copy, images, design logos, white papers, training content, academic papers, webinars, brochures, and many other branding and marketing assets.

Process.   Be sure that you own your intellectual assets and not your vendors.   Of equal importance is to make sure that you are not infringing the intellectual property rights of others when instituting marketing campaigns.

  1. Review key vendor agreements.  Does your hospital use outside creative agencies to help develop brand collateral and marketing campaigns?  If so, it is important to make sure that you own all underlying intellectual property rights in the subject matter that they create.  Unless your vendor agreements indicate that the vendor’s work is a work for hire, then all intellectual property rights in and to the underlying creative output remains in the property of the vendor.  Yes, it is likely that your vendors own your key creative assets, even if you paid for them!
  2. Review all third-party content.   If you or your vendor are creating a campaign that uses photos, images, icons, or any other design elements that you did not create, you must determine if you have permission or rights to use such materials.  If you do not, it is quite possible that you could receive.a cease and desist letter for copyright infringement.  Under U.S. law, owners of copyrighted materials are eligible to be awarded statutory damages in the amount of $750.00 to $30,000 per infringing copy, at the discretion of the court.
  3. Train key hospital personnel.   Your brand’s health is everyone’s responsibility – not just your marketing department.   Therefore, it is important to have annual education and training of all internal stakeholders and agencies that are responsible for your brand activities and reputation.  Departments that should be included in training include marketing, communications, information technology,  financial, and public relations.  It is also advisable to have all brand ambassadors be part of your education and training efforts.

Conclusion.  The key to a strong hospital brand starts with proper brand identification and protection procedures.  Making sure that your hospital has a brand protection program in place can make the difference.

Digital health

Hospital marketing lawsuits can often be avoided.  But many hospitals do not have adequate brand and marketing risk management because they think they either don’t need it or cannot afford it.  Not having proper risk prevention training and policies can be costly to you and your health care organization.

Here are some recent cases where hospitals were involved in lawsuits regarding their branding and marketing activities:

Case #1.  A Florida health system was sued for deceptive advertising as part of a medical negligence action that resulted in the death of a patient from bariatric surgery.  The hospital had advertised in its marketing materials that it was awarded the American Society Bariatric Surgery Seal of Excellence.  To be eligible to receive the certification, doctors must have performed 50 bariatric surgeries and completed 20 hours of continuing education.  The physician who performed the surgery that resulted in the patient’s death had only performed 21 bariatric surgical procedures.

Case #2.   A Midwestern health system was sued for trademark infringement by a national healthcare insurance company for using a specific color in its geometric-shaped logo.  The total cost (aside from attorney’s fees) to change all signage and other branding and marketing collateral was estimated at $2-3 MM. This very same insurance company routinely sends cease and desist letters to other healthcare providers across the country threatening further legal action if the claimed color is not removed from their logo and other marketing collateral.

Case #3.   A medical billing and electronic health records software company in Georgia successfully opposed a trademark application of a primary care and mental health care provider in Florida that was using the same name, albeit for different healthcare related services.   The case, which went to trial, was heard before the U.S. Trademark Trial and Appeal Board.  The cost?  According to recent statistics, the average attorney’s fees of a fully contested trademark opposition proceeding is $ 125,000 or more.

Case #4.   One of the largest healthcare software companies in the world brought an action for copyright infringement against a Tennessee healthcare system.  The software provider had granted the 126-hospital system a bundle of paid licenses for the use of its software. Pursuant to the terms of the license agreement, the licensee was prohibited from distributing or sublicensing any of the software. As part of its divesture of various hospitals, the defendant continued to facilitate the use of the licensed software by the sold hospitals.   When the software company sought to conduct an independent audit of the licenses, the healthcare system did not fully cooperate with the accounting, leading in part to the lawsuit.

Case #5.   A Wisconsin children’s hospital received a cease and desist letter from a pediatric practice that was using a similar, geographic trademark.   This resulted in a U.S. district court lawsuit as well as a trademark opposition before the U.S. Trademark Trial and Appeal Board.

Hospital Marketing Advisory.   To help mitigate your hospital marketing lawsuits risks, it is recommended that you conduct a health marketing checkup of all of your branding and marketing assets every year.  

hmblog.allergycare

The name ALLERGY CARE was recently found to be a generic trademark and refused registration by the U.S. Patent and Trademark Office.

The applicant, James Haden M.D, sought registration of ALLERGY CARE on the Supplemental Register for “medical and healthcare services, namely medical treatment of allergies, asthma, immune disorders, and shortness of breath” in International Class 41.

The Examining Attorney had initially refused registration on the Principal Register on the grounds that the mark was merely descriptive of the services.   A merely descriptive trademark is one that immediately and directly conveys some information about the applied for services.  Since merely descriptive marks are not inherently distinctive, they are not eligible for registration on the Principal Register.

After the application was refused, the Applicant sought to amend the mark to the Supplemental Register.  Trademarks are eligible for registration on the Supplemental Register if they are capable of distinguishing an applicant’s goods from those of others.  This includes merely descriptive marks.  When an Applicant seeks to amend its application from the principal to supplemental register, however, the Examining Attorney conducts a further examination to determine registrability.   Here, the Examiner concluded that the mark ALLERGY CARE was in fact generic of medical and healthcare services that included the treatment of allergies.  A generic trademark can never be registered, either on the Principal or Supplemental Register, as such terms fail to function as a source identifier.

A generic term refers to the name of a class or category of particular goods or services.  A determination of genericness depends on its primary significance to the relevant consumer.  This involves a two-step process:   First, what is the genus of the goods or services at issue?  Second, is the term sought to be registered understood by the relevant public primarily to refer to the genus as a whole?

Here, the Examining Attorney presented over 40 excerpts from internet web pages in which medical professionals used the  term “allergy care” to refer to their medical and healthcare services.   The Examiner also introduced evidence of the common dictionary definitions of “allergy” and “care” that evidenced that the Applicant’s services described the name of the common goods and services.   Based on a totality of the evidence, the Board ruled that the mark ALLERGY CARE is generic and denied registration.

Health Marketer Alert.    Before seeking to adopt or register a name for a new service line or campaign, make sure that is has sufficient distinctiveness to make it eligible for trademark protection.  Regardless of whether you seek to register it or not, a trademark clearance search should first be conducted to mitigate the risk of infringing a third-party’s trademark rights.

Leveraging your healthcare branding was the topic of a recent health marketing presentation in Nashville, Tennessee.  The speakers were Janell Moerer, SVP & CMO Centura Health; Kristen Wevers, SVP & CMO UC Health; Philip Guillano of Brand Active; and David Perry, Perry IQ.

Here are some great observations from the panel:

Why healthcare branding matters.   Healthcare providers are viewed by consumers and patients as commodities.  Therefore differentiation becomes key. What healthcare brands stand for and why it matters is a key differentiator between competitors.  Brand is much more than the name of your hospital.  Your name alone is just one component of your brand.  The power of your brand includes identity, recognition, and goodwill.  Not just among consumers, but your employees.

The power of your hospital branding.   Without a brand that is clearly definable, you cannot properly clarify your brand attributes and benefits to your consumer market.   Marketing is a valuable, strategic asset that has a major role at your organization’s table.  The challenge is for your marketing team to being perceived as a strategic value asset  — not just  order-takers for brochures or billboards.

Brand building in healthcare.   Brand building starts from the inside-out.  Hospital leaders must know the importance of branding and embrace it as a strategic, not just marketing, initiative. To a great degree, healthcare brand building is still in its infancy.  You and your team can play a vital role in educating consumers and your internal team on the value of your brand.  A healthy brand can translate into greater patient loyalty, more referrals, and increased revenue.

Branding Clearance.   Sometimes brand identity and roll-out hits roadblocks.  One healthcare system realized late in the process that it had potential legal troubles with its rebranding.  The result?  Wasted time and costs.  That is why the brand and marketing teams should align with experienced trademark counsel early in the branding process to avoid surprises.

Branding consultant partners.  The importance of good branding consulting partners cannot be underestimated.  Great partners help drive the execution of the strategic plan.  Chief Marketing Offers do not have time to be an expert in all branding niches.  This includes the specialties of brand protection and brand risk awareness training.  Many CMOs are now big fans of shared learning.  This is peer-to-peer education and training that can increase your team’s knowledge and skill sets.  Trainers can be resourced either internally or through outside consultants.

The takeaway.  Your healthcare brand is your number one asset.  Used correctly, it can increase customer awareness, differentiate you from competitors, and drive economic results.   Start making your hospital branding stronger today through effective risk management and value capture solutions.

Hospital brand ambassador programs are growing popularity.   This was the subject of a compelling presentation by Kristen Bowser, Director of Communications and Kelly Kavanaugh, VP and Chief Strategy Officer of Dayton Children’s Hospital.

The presentation covered the following areas:

  •  how to implement a brand ambassador’s program
  •  leverage a team of employees to implement and communicate significant changes impacting culture
  •  sustain your brand ambassador program and measure its success

The Challenge.  Brand has become of primary importance to Dayton Children’s Hospital due to competition becoming more fierce in the region.  Dayton Children’s Hospital recognized the following problems with their brand:

  • brand position not aligned to brand aspiration among fierce competition
  • brand attributes not clearly perceived
  • brand identity (no controls over brand standards and multiple sub-brands and logos)

Any change with brand identity includes investment in brand and change management.  This included identifying outdated materials, creating new branded employee uniforms and merchandise, and to promote the new brand identity internally.  There are typical problems with employees when discussing brand:

  • negativity about new brand initiatives
  • lack of understanding about the new brand identity and the purpose of it
  • reluctance to embrace change

Why a Hospital Brand Ambassador program?   There are several reasons to implement a brand ambassador program.   One is to align employees around the big “B” and little “b” of your brand.  Brand ambassadors are in every department and will be your biggest advocates.  Brand ambassador programs begin with:

  • senior leadership and buy-in.
  • CEO asks directors to nominate staff for brand ambassadors from each unit
  • job description given to leadership and candidate employees

Brand ambassadors are your identity communication advocates.  They are empowered to:

  • be called-in in moments of brand reputation crisis
  • help to communicate and educate employees how to be promoters of the brand
  • raise awareness and pride in your mission

Additional learnings.

  • brand is bottom to top: employees, physicians, and consumers.
  • every interaction impacts your brand, your brand is always changing.
  • your brand starts with your employees

Your health of your hospital’s brand can be positively influenced through implementing a brand ambassador program.  Benefits of an effective program include greater brand equity, positive shift in brand perception, and greater competitive advantage.

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The U.S. Department of Health and Human Services (HHS) has a helpful guide for its employees on trademark clearance and protection.  It provides useful guidance to public sector healthcare concerns and well as private healthcare systems and providers.

The HHS Guide discusses four important areas and benefits of trademark protection:

What is a trademark.   A trademark (also known as a brand name) is any name, word, or symbol used in connection with the marketing of goods or services.  Trademarks are intangible assets and act as a source indicator.  There are four types of trademarks:  marks for goods; marks for services; collective marks that recognize the provider as a member of a select group; and certification marks.

The value of trademarks.   Trademarks are among the most valuable assets of a business.  The more distinctive and well-know a mark is, the greater value it has to potential consumers.  A strong trademark can result in greater competitive advantage.  Hospital trademarks and its service lines are particularly valuable.

Benefits of trademark registration.   Federal registration has many benefits.  These include notice of a claim of ownership; a legal presumption of nationwide ownership; and the exclusive right to use the trademark in connection with the protected goods or services.  Healthcare providers may encounter several situations where having a federal trademark registration would be beneficial.  Trademarks are not just appropriate for hospital names or physician practices.   Examples of  healthcare sector trademarks include brand names for service lines, educational programs, and community volunteer programs.

Trademark clearance.   If you are a hospital or healthcare provider, you should set-up a system to document all of your existing trademarks, slogans, and logos.   Determine if these naming assets are federally registered.  If not, consider doing so with the help of an experienced brand protection attorney.   If you are considering new brand names, a trademark clearance search should be conducted prior to adopting the name for use or possible registration.  Finally, consider implementing a trademark compliance policy to mitigate risks of trademark infringement.

A pharmaceutical company named after the Lupine flower was successful in a recent trademark opposition before the U.S. Trademark Trial and Appeal Board.

Background.  In Lupin Pharmaceuticals, Inc. v. Ampel, LLC, the Applicant had filed for registration of the mark LuPPiN (in stylized characters) for education services and support groups pertaining to medical treatments for lupus in Classes 41 and 45.  Lupin Pharmaceuticals opposed the application, relying on its prior registrations of LUPIN and LUPIN and Design for a wide variety of pharmaceutical preparations and goods in International Class 05.  Although Applicant raised certain affirmative defenses it did not file any counterclaims to cancel Opposer’s registrations in whole or in part.  The Opposer had the burden of establishing standing, priority, and a likelihood of confusion on its claim.

Analysis.  Opposer successfully established its standing and priority by introducing its LUPIN registrations that were pre-dated Ampel’s application.  With regard to a likelihood of confusion, the Board analyzed the du Pont factors used to determined whether a likelihood of confusion exists between two trademarks.  Although the du Pont factors include thirteen different criteria, the Board often focuses on two primary factors, as it did here.  These are similarity of the parties’ trademarks and the similarity of the parties’ goods and services.  The Board also referenced three-other factors of interest:  similarity of the parties’ trade channels; the conditions under which sales are made; and the fame of the Opposer’s pleaded trademarks.

The Board found that the parties’ marks were similar in sight, sound, and meaning.  This factor weighed in Opposer’s favor.  It also found that the parties’ respective goods and services were related as pharmaceutical companies often provide education and support group services to affected patients and their families.  Here, it did not matter that Opposer did not presently engage in such services.  The issue is what relevant consumers would be likely to think based on common industry practice.  The Board also ruled that the parties’ trade channels were sufficiently similar based on the parties’ respective identification of goods and services as written.  Finally, with regard to the sophistication of purchasers, the Board held that this factor favored Applicant.  This is because consumers of pharmaceutical products are likely to exercise greater care in their purchasing decisions.

Result:  The totality of relevant likelihood of confusion factors resulted in judgment if favor of Opposer.

The U.S. Trademark Trial and Appeal Board recently cancelled a fitness trademark registration based on abandonment.   This case serves as a reminder of the importance of proper health trademark use.

In Rise Above Fitness LLC v. Rise Above Performance Training, the Petitioner brought a cancellation action on the grounds of abandonment, fraud, and likelihood of confusion.   The Respondent was the owner of U.S. trademark registration of the mark RISE ABOVE for personal fitness training services.   Petitioner’s application for RISE ABOVE FITNESS  for fitness boot camps was refused based on the preexistence of the RISE ABOVE registration.  The Petitioner therefore had standing to bring the petition for cancellation of the RISE ABOVE registration.  Rise Above Fitness LLC filed a brief in support of its trial testimony.   Rise Above Performance Training, for some reason, did not.  Respondent did not file trial testimony or submit any evidence either.  Its belated attempt to reopen its time for doing so was denied by the Board.

In support of its case, Petitioner filed its Requests for Admissions that is served on Respondent.  The Respondent failed to answer or object to any of the admission requests.  Accordingly, the requests for admissions were deemed admitted.   The Request for Admissions contained the following admissions:

  • Admit that you have failed to exercise continuous use of Registrant’s mark since November 21, 2012.
  • Admit that you have failed to exercise continuous use of Registrant’s mark since July 9, 2013.
  • Admit that you do not have any bona fide future plans to use Registrant’s mark in connection with Registrant’s goods and services.

Since the Admission requests established a prima facie case of abandonment, and coupled with the fact that they were deemed admitted, this proved fatal to Respondent’s case.  The Board concluded that the Respondent had abandoned its rights to its trademark.  Respondent’s registration was cancelled and judgment issued in favor of Petitioner.

Attorney’s note:  This case presents an example of the dangers of failing to maintain a robust defense to a trademark cancellation proceeding.   Parties who fail to either settle the case or engage in a defense operate at their own peril.   If a petition for cancellation for abandonment has been filed against a trademark that you or your company own, you may contact us to discuss the matter.

A recent trademark opposition dispute has been decided between home healthcare competitors.  This is another in a series of recent proceedings.

Background.  In Right at Home LLC v. Love Right Home Care LLC,  the Applicant, Love Right, sought registration of the mark LOVE RIGHT HOME CARE REFERRAL AGENCY.   It disclaimed the exclusive right to  “home care referral agency” separate and apart from the entire mark as shown.   The application was for employment placement services in International Class 35.Right at Home opposed the application.  The basis of the opposition was that it was likely to cause confusion with its RIGHT AT HOME registered marks for goods in services in Classes 16, 35, 42, 44, and 45.

Analysis.  The Board analyzed the likelihood of confusion analysis under the du Pont Factors, that comprises 13 elements that Board can evaluate in determining whether a likelihood of confusion exists.  In a likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services.  Opposers always bear the burden of proof in proving likelihood of confusion.  Where as here, an Opposer relies on several marks, the Board compares the closest registered mark of Opposer with that of Applicant’s mark.   In this case, the Board compared  Opposer’s Reg. No. 4680962 for the mark THE RIGHT CARE, RIGHT AT HOME for home health care services and non-medical personal care assistance with Applicant’s mark and services.  In comparing the similarity between the parties’ goods and services, the Board is limited to an examination of the goods and services that appear in the Opposer’s registration versus the goods in Applicant’s application. The Board concluded that the parties’ services are related and overlapping in part.  Therefore, the similarity of the parties’ services factor favored Right at Home.   The Board went on to state that although it viewed the mark THE RIGHT CARE, RIGHT AT HOME to be weak, even a weak mark is entitled to protection against a very similar mark with the same or related goods.   Applicant, was also not able to show that there was prolific third-party use of similar marks such that a likelihood of confusion would be avoided.

Finally, with regard to the first du Pont factor, similarity of the marks, the Board held that it is often the first part of a mark that is most likely to be impressed on the mind of a purchaser.   Here, it held that dominant portion of the Opposer’s mark to be “RIGHT AT HOME.”  The dominant phrase in the Applicant’s mark is either “LOVE RIGHT” or “LOVE RIGHT HOME CARE.”

Conclusion.  Based upon the totality of evidence, the Board ruled that the overall dissimilarity of the parties’ marks in appearance, sound, meaning, and commercial impression were dispositive.   Therefore it would make confusion unlikely.  The Board proceeded to dismiss the Opposition and ruled in favor of Applicant.

Attorney’s note:   This case is an interesting example where one single du Pont factor can make all the difference in a Trademark Trial and Appeal Board proceeding. 

Two dental practices were the parties to a recent trademark opposition proceeding.

Background.  In Timber Dental LLC v. Tooth LLC, the Applicant “Tooth” filed a trademark application for DENTISTRY DONE DIFFERENTLY for dentist services in International Class 44.   The Applicant had to disclaim the term “”dentistry” separate and apart from the mark as shown.  The Opposer, Timber Dental filed a trademark opposition claiming  common law rights in and to the identical mark DENTISTRY DONE DIFFERENTLY.  By claiming unregistered trademark rights, the burden was on the Opposer to show two things:  priority and likelihood of confusion.

Burden of proof.  To establish priority rights, the Opposer may rely on its own trademark registration.  Alternatively, it can rely on actual use, or use analogous to trademark use.  In all instances, the Applicant has the burden to prove that its registration or use predates the first use of the Applicant.   Here, since the Opposer had to rely on its claim of priority based on common law use of the mark or use analogous to trademark use.   In doing so, the Opposer could rely on advertising brochures, catalogues, websites, or other marketing materials.  Such materials would have to support a finding that the public associates the trademark as a source indicator of the Opposer.  Moreover, a party that relies on common law priority must also establish that the mark is distinctive.

Result.  The Applicant ‘s date of first use was November 2016.  Opposer’s witness testified that its date of first use of the mark DENTISTRY DONE DIFFERENTLY dated back to the date the practice opened.  This was 2014.   Unfortunately, the advertising evidence that the Opposer introduced in support of its first use date was not use of the mark in question but rather “Family Dentistry Done Differently.”  The Board concluded that the Applicant’s mark was not the same as the Opposer’s mark.  The Opposer never amended its Notice of Opposition to allege a likelihood of confusion with FAMILY DENTISTRY DONE DIFFERENTLY.  Accordingly, the Board had no choice but to rule in favor of Applicant and dismiss the Opposition.

Attorney’s Note.  If uncorrected, procedural errors can be fatal in trademark opposition proceedings.  Examples include relying on the wrong mark, or failing to plead a proper cause of action.