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Healthcare providers, practices, and companies today have a multitude of ways to reach consumers and patients. A provider can utilize Facebook, Instagram, Twitter, and other social media websites to target advertisements, post information about their practice, and attract new patients. This mass sharing of information, however, provides trademark infringers a prime opportunity to infringe on your trademark rights.
Start-up businesses and consumer products are not the only companies capitalizing on the social media boom. For example, Dr. Howard Luks, an orthopedic surgeon and sports medicine specialist in New York, has an active presence on all social media channels. Dr. Luks uploads videos to YouTube to market and attract patients. In one video, Luks explains why meniscal tears are so common and whether surgery is always necessary for this type of injury. This video has been viewed almost 200,000 times. Dr. Luks is a prime example of a physician utilizing social media to market his medical practice. However, with social media marketing, healthcare providers, practices, and businesses need to ensure they protect their trademark rights.
What exactly are my “trademark rights”?
A trademark is a word, symbol, or phrase used to identify a particular manufacturer or seller’s products and distinguish them from the products of another. 15 U.S.C. § 1127. When such marks are used to identify services rather than products, they are called service marks, although they are generally treated just the same as trademarks. A trademark identifies the source of products or services and distinguishes them from the products or services of others. Trademark infringement occurs when there is confusion as to the source of products or services. Trademark rights are acquired through use, and owners can have common law rights even without a registration.
Where does social media come into play?
If a word, phrase, or design in a social media post is confusingly similar to another’s trademark and is used to promote similar or related products or services, the trademark owner having prior rights can object to the use (whether its mark is registered or not). This includes use of words and phrases in hashtags, captions, stories, and other platform-specific features. In healthcare, the importance of protecting your mark not only relates to your business or practice, but it also affects your professional reputation.
An interesting tale of a physician and his trademark.
In 2015, Dr. Draion M. Burch, known to patients as “Dr. Drai”, applied for the “Dr. Drai” trademark and requested protection for “educational and entertainment services,” with products to include books, audiobooks, webinars, podcasts and various other media related to his medical practice. Dr. Drai is a Pennsylvania-based gynecologist and media personality. On his website, he touts himself as “One of America’s Top Women’s Health Experts.” Surprisingly, Dr. Dre, the Grammy award-winning rapper, objected to the physician’s registration of the mark stating there was a likelihood of confusion.
Earlier this year, the USPTO’s Trademark Trial and Appeal Board (TTAB) sided with Dr. Drai, writing, “the issue is not whether purchasers would confuse the goods or services but whether there is a likelihood of confusion as to the source of the goods or services.” The Board found “no evidence of record” showing that “consumers would likely believe the parties’ goods and services would emanate from the same source” and dismissed Dr. Dre’s opposition to the trademark application. Dr. Drai not only won his right to utilize his mark to advertise his brand, but Dr. Drai is now protected from future infringers in the medical field.
How do I protect my brand?
To maximize protection of your brand, you should consider registering your trademarks with the U.S. Patent and Trademark Office. This protects your business and gives you an edge in legal situations. If your business or medical practice utilizes social media for marketing, to interact with patients or customers, or to reach consumers, you may have certain trademark rights that need protection. Additionally, if you have acquired usage of a word or phrase used to describe your business or practice, you likely would benefit from registering that word or phrase as a trademark. To determine if you have trademark rights that should be protected, or if you have questions about the best way to protect your company or practice’s brand, contact the Milligan Lawless attorney with whom you usually work.