Medical practice owners and execs need to understand and protect their intellectual property, as well as avoid legal exposure of infringing on the legal rights of others.
Part of your practice’s value, image, and reputation is the intellectual property (IP) in its name, logo, and other associated unique identifiers.
It’s important that physicians take steps to preserve their rights in this area and understand the following terms of art and the value they represent. Over the years, I’ve worked with a variety of clients that have had various forms of their IP infringed upon and who incurred significant legal expenses defending it.
I have also seen several have the use of their own business name or other associated issue legally challenged by the owner of a business with a similar or identical name in another state. In almost every case, they have had to either change their name or usage, pay the other user some fee, and/or enter an agreement that significantly limited their use, even in cases where they had been using the name for years and where an identically named user was not in the same business.
How would you feel about having to change these details today?
For succinct help in providing a field guide to these legal issues I turned to an expert, Phoenix-based intellectual property lawyer Michael Dvoren, who has generously allowed me to share key concepts from his own teaching presentation here.
What is Your “Trademark”?
A trademark is any word, term, name, slogan, logo, symbol, design, device, or any combination thereof, you use to identify and distinguish your goods and services from those of other sellers or providers.
Trademarks are also vital source indictors, (i.e., they tell consumers that particular goods and services originate from a particular seller or provider, tell them about the quality of those goods and services, and they symbolize the goodwill and reputation of the seller or provider). Just as the Coca-Cola name on each can tells consumers it isn’t Pepsi, tastes like a Coca-Cola, and is safe to drink, your practice name, logo, etc., conveys value in multiple ways.
Trademarks also protect the trademark owner’s reputation and goodwill without unfairly limiting competition or giving trademark owners overbroad monopolies.
There are multiple types of trademarks. Some practices may have more than one, especially those that provide services that are unique or delivered in a unique way, dispense any prescription or non-prescription products or are affiliated with a group (like a healthcare chain or “college” of specialty physicians) or that indicate a professional certification. Just as a “Trademark” (TM) is a source indicator for goods, a “Service Mark” is a source indicator for services.
The term “Trade Dress” refers to the characteristics, design, shape, configuration, and/or appearance of a product, product packaging, or three-dimensional space (like the standardized interior appearance and decor of a practice or exterior of a building) if these serve the same source-identifying function as a trademark.
Dvoren provided common examples like the design of all Apple Store interiors, the exteriors of Texaco gas stations and the shape of a Coca-Cola bottle or your favorite vitamins, shampoo, etc. He also pointed out some more subtle, but still valuable and protected assets that most people overlook including sounds (think of the various sounds your iPhone makes, NBC’s three-tone sound, and the roar of the MGM lion), colors (like the unique shade of green on John Deere Tractors, blue on Tiffany boxes, and the red colored soles of Christian Louboutin shoes), and even unique smells and patterns of motion.
Avoiding and Spotting Trademark Infringement
Infringement is the unauthorized use of another’s trademark on or in connection with goods and/or services in a manner that is likely to cause third parties confusion, deception, or mistake as to:
1. The origin or source of those goods and/or services;
2. The affiliation, connection, or association of the unauthorized user with the trademark owner; and/ or
3. The trademark owner’s sponsorship or approval of the unauthorized user’s goods, services, or commercial activities.
As with nearly every risk we have addressed with you over the last few years, some risk management planning and legal preventative medicine is always more effective and cheaper than trying to fix a problem.
Our next discussion will include the basics of patents, copyrights and trade secrets.
Attorney Ike Devji has practiced in the areas of asset protection, risk management, and wealth preservation law exclusively for the last 15 years. He helps protect a national client base with over $5 billion in personal assets that includes serval thousand physicians and is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter.