Photo of Kathy Rheintgen

Kathy’s intellectual property litigation experience includes managing pharmaceutical, as well as mechanical, patent cases in a variety of trademark and copyright infringement matters and trade secret and antitrust matters. She also has experience in writing infringement opinions for patent, trademark and copyright cases.

Healthcare is a highly competitive market. Healthcare companies are hiring marketing teams to lure customers to their facility. This will invariably require making statements regarding the quality of your services and how your services are better than your competitors. Problems will arise if these ads cause patients or their families to expect more than what is or even can be offered. There are many scenarios that could result in claims of false advertising under §43(a) of the Lanham Act. In addition, the Federal Trade Commission (FTC) and the National Advertising Division (NAD) of the Council of Better Business Bureaus have guidelines for what companies may include within their marketing programs. Today, however, we will be looking at “puffery.”
Continue Reading Branding 101 – Should puffery be avoided in healthcare advertising?

In one of our first posts, we discussed the five categories of trademarks (Generic – Descriptive – Suggestive – Arbitrary – Fanciful) and how a mark became more protectable as it moved up the line. Laudatory trademarks, trademarks that attribute a quality or excellence to the goods or services, are often included in this list as “descriptive marks” requiring a showing of secondary meaning to be protectable. However, it has been recognized that some laudatory marks do not describe any feature of the product it is used with, but rather suggest that the product is of high quality or “better” quality than other similar products. In these cases, the laudatory composite mark may be considered to be suggestive.
Continue Reading Branding 101 – Laudatory Trademarks: Are they worth the effort?

This week we are discussing ways you can use a third party’s mark to identify the third party’s goods or services while also advertising your own. For example, a dental office wants to let potential patients know that it uses a specific brand of dental veneers. The law allows XYZ Dental to factually state:

“XYZ Dental specializes in the fitting and application of ABC® brand veneers.”

This type of use is known as nominative fair use and as with comparative advertising and descriptive fair use, there are rules that need to be followed.
Continue Reading Branding 101: Nominative Fair Use

Last week we discussed ways that you can use a competitor’s mark in comparative advertising. This week we will discuss use of a mark in a descriptive manner such that it is not being used as a trademark, thereby greatly reducing, if not eliminating, the possibility of the use being found to be trademark infringement.
Continue Reading Branding 101 – Trademark Descriptive Fair Use

We have talked about why it is important to use your trademark consistently. The easiest way to be sure that everyone in your organization knows the proper way to use the company’s trademarks is to create and distribute a trademark usage manual. The trademark usage manual should include easy to follow guidelines setting out that the mark is to be used as an adjective and not a noun, as well as the proper font, colors etc. that should be used to depict the mark. The usage manual does not need to be a complex or confusing document. It should be a straightforward listing of the acceptable ways that the company’s trademark should be used.
Continue Reading Branding 101: Trademark Usage Manuals

In our companion post we are talking about the importance of using your trademarks in a consistent manner. This consistency helps consumers know that when they see KalmKap that it identifies a product coming from a single company and that they can trust that the quality is the same as the last time they bought the product. Consistent use helps to identify your mark as being owned by you. Another way identify your marks as belonging to you is use the recognized trademark symbols and to make appropriate attribution statements somewhere within your ads.
Continue Reading Branding 101 – Proper use of trademark symbols and attribution statements

We have discussed the need to use your trademarks as adjectives and not nouns or verbs to avoid having them becoming descriptive or even generic terms. A good quick test to see if you are using the mark correctly is to remove the mark from the sentence and see if it still makes sense. If you still have a functional sentence, you are using the mark correctly. So, “Buy XYZ surgical equipment, it will make your day easier” still makes sense without the mark: “Buy surgical equipment, it will make your day easier.” However “Buy XYZ, it will make your day easier” makes no sense without the mark: “Buy, it will make your day easier.”
Continue Reading Branding 101: Trademark Audit – Using your marks consistently (why you need a trademark style guide)

A trademark audit is at its most basic an asset inventory. But instead of tracking down and counting blood pressure monitors, otoscopes and scalpels you are tracking down words, phrases and pictures (logos) that you are using to promote your business to the public. And instead of checking and noting the condition of physical items and culling out those that are beyond repair or use, your trademark auditor will be determining what words, phrases and pictures (logos) you are using as trademarks and whether you are using these marks properly. It may also find that you are using marks that no longer conform to your desired public image or mission statement and that need to be retired.
Continue Reading Branding 101 – The Trademark Audit: Introduction

A trademark is an adjective. It is not a noun or a verb. Why?  Because, a trademark’s purpose is to identify the source or origin of a product, NOT to identify the product itself. You have gone to great lengths to find a mark that is not descriptive of your product, and we have discussed that generic marks can never be a trademark, so you do not now want to use your mark in such a way that you cause to become descriptive or generic.
Continue Reading Branding 101: Proper use of a trademark – It’s all in the grammar