SHSMD 2018 is now under way in Seattle, Washington.

The Society for Healthcare Strategy & Market Development (SHSMD),  is a professional membership group of the American Hospital Association.   The annual conference brings together health marketing and strategic leaders from healthcare systems, providers, and consulting companies nationwide.

This morning’s Healthcare Marketing Credentials session features faculty member Rob Klein of Klein & Partners.  Rob’s company provides health marketing research and customer insight to help his clients make informed marketing decisions.  Two of Rob’s insights emphasized the importance of health marketing compliance in marketing and strategy management:

I care about the health of the brand.  If you make a bad marketing decision, you can lose your job.

Here’s some of our own observations on Rob’s thoughts:

Brand health is legal health.  Great marketing plans do not begin with great ideas alone.  Why?  Because great ideas sometimes put your health marketing efforts at great legal risk.  What do we mean by risk?   Things like:

  • Copyright infringement.  Failure to secure rights to images, or distributing copies of proprietary research or publications without a proper license.
  • Trademark infringement.  Commencing a health marketing campaign with a new brand name or slogan without a proper trademark search, clearance, or registration.
  • Consumer Class actions.   Certain law firms seek-out health marketing violations that are ripe for class action lawsuits.  Marketing violations that can quickly escalate into major law suits include violations of the Telephone Consumer Protection Act (TCPA); HIPAA Marketing Laws; and CAN-SPAM Act.

Take an ounce of [legal] prevention.  The median hospital marketing department annual budget is $3.1 million, according to a survey by Klein & Partners and Greystone.net.  Yet our own observations of marketing compliance practices indicates that very few marketers invest part of their overall budget in brand marketing clearance, protection, and risk-mitigation.  This is despite the fact that failure to properly implement marketing compliance training and programs could result in losses that are equal to or greater than a hospital’s annual marketing budget.   An exaggeration?  Hardly.   Many health care marketers have unfortunately realized such losses through a combination of attorney’s fees, monetary damages, corrective advertising, and injury brand reputation.

Thanks to SHSMD and speakers like Rob Klein for running a great conference.

Marketing Compliance Advisory.   Health marketing compliance training and guidelines should be part of every healthcare marketing plan.  To discuss how to implement one in your organization, contact James Hastings, Editor.

An effective trademark compliance policy may be good for your health.

Each year, healthcare providers are named unwitting defendants in trademark infringement suits in the U.S. district courts.  The same holds true for trademark opposition and cancellation proceedings brought before the U.S. Trademark Trial and Appeal Board.  So what is the good news?  Many lawsuits can be avoided through proper education and trademark compliance training.

By way of example, the National Institute of Health (NIH) has written trademark compliance policies and guidelines for its employees.  This U.S. government agency knows the importance of trademark rights and how to protect its vast array of brand names used in connection with its various services.  Equally important is its awareness of the risks that trademark infringement can bring, including disruption to public marketing and promotional initiatives.

So if you’re a health system or other healthcare provider, it’s a good idea to implement a trademark education and compliance program for employees.  General areas that should be included in a trademark compliance program are:

  • trademark definitions and concepts
  • explanation of the trademark clearance process
  • how to search, clear, and apply to register trademarks
  • trademark use guidelines
  • what is trademark fair use and what is not
  • employee roles, responsibilities, and procedure
  • creative and marketing vendor responsibilities and procedures
  • trademark usage in digital marketing, including paid search

In addition to the above, annual risk and compliance training should take place with all employees and key vendors that have responsibility for brand assets, marketing, and promotions.  Health systems literally spend millions of dollars a year in brand marketing and promotional efforts.  Making brand compliance an integral part of your compliance and risk strategy can help protect your valuable brand investments and mitigate your risks.

An ounce of prevention is indeed worth a pound of cure.

Editor’s Note:   To discuss your trademark compliance policy or how to design and implement one, please contact us.  

Copyright infringement claims against health providers is a growing concern.  Unfortunately, many healthcare systems and hospitals neglect to implement a marketing compliance program until something goes terribly wrong.  The result?  Potential liability for copyright infringement.

What is copyright infringement?   Broadly speaking, copyright infringement is the unauthorized appropriation of original materials that are protected under U.S. copyright law.  In the context of healthcare marketing and advertising, the following materials are eligible for copyright protection and may be subject to claims of infringement:

  • Marketing and advertising copy of various digital and print collateral
  • Website copy
  • digital images and photographs
  • digital health software and platforms
  • diagnostic videos
  • medical journals and publications
  • medical illustrations

Examples of copyright infringement.  Many health providers believe that copyright infringement only occurs in the case of using a third-parties photographs or images without permission.  In fact,  there are several instances where a healthcare system may be liable for copyright infringement.  These include:

  • appropriation of copyrighted text that is incorporated into third-party health marketing collateral
  • unauthorized distribution of medical journal articles to several colleagues where a per copy license or subscription was not paid
  • unauthorized multiple uses of software products where only one license or no licenses were purchased or where the license had expired
  • unauthorized downloads or repurposing of health and wellness videos
  • use of patient testimonials without permission
  • use of digital images and photographs without the permission of the owner

Copyright infringement prevention.   Healthcare marketers and providers should be sure to establish a healthcare marketing and compliance program that consists of these important steps:

  • Conduct a health marketing audit.   An inventory of all marketing and advertising collateral that has been created or used by the health provider in the last year should be complied and assessed for compliance with copyright law and other laws related to trademark, advertising, marketing, and promotions, and privacy.
  • Rectify legal compliance errors.   Any health marketing materials compiled as part of the marketing audit process should be reviewed for legal compliance.  Those materials or processes that are non-compliant should be identified for immediate legal remediation on a priority basis.
  • Establish a health marketing compliance program.   Hospitals and health providers who do not already have a compliance program in place can get started with the help of a qualified health marketing and compliance attorney.  Providing education and training to internal marketing personnel and outside marketing agencies on legal compliance pitfalls is the first step in the process.

Recommended next steps:  To discuss implementing a health marketing and compliance program and training in your organization, you may contact the author of this blog.