Are you worried about audits and investigations at your post-acute care facility?  If not, you may need to be.  Husch Blackwell attorneys Brian Bewley and Barb Miltenberger weighed in on this issue in Report on Medicare Compliance.  The article discusses audits and investigations at post-acute care facilities and Bewley points out that home health and hospice…

The mark has been chosen, the trademark search was clear, and it has been decided that the mark should be registered. The next step in the process is straightforward – file an intent to use (ITU) trademark application.

It is not necessary or recommended to wait until the mark has been used to file the application.    An application can be filed based on your bone fide intent to use the mark in the future.  The application will not register until after use begins. Once use begins, a separate statement is filed claiming this use. After the application is approved by the Examiner and has been published for opposition, a Notice of Allowance will issue.  The applicant then has 6 months to file either a statement of use, or to request a 6-month extension of time.  A total of 5 extensions of time can be requested – up to a total of 3 years after the date the Notice of Allowance issues. If use has not begun after the expiration of the 5th extension of time, the application will abandon as a matter of law.

The benefit of filing an ITU application is that once use begins and the application is registered the owner can claim a constructive date of first use as of the filing date of the application.  This could add months or years to the start date of your rights. There are some additional costs and filing fees associated with the filing of the use statement and/or extensions of time to file the use statement; however these are offset by the right to claim an earlier starting point for your rights.

After choosing the mark itself, an important part of the registration process is crafting the identification of goods or services.  You want the identification to be both broad and specific.  If the mark will be used as an overall mark for your entire organization, the identification may be straightforward “hospitals and medical services.” If the mark will be used for a specialized service offering, it may be necessary to develop a more specific identification.

Husch Blackwell welcomed two healthcare associates in recent months.

Jarrod W. Pearson joined our Denver office as a Healthcare Associate with more than four years’ experience practicing healthcare law in Colorado.  Jarrod represents hospitals, medical centers, physicians, nurses and others in the industry as they grapple with an evolving compliance and regulatory environment.  To read…

Once you have selected a trademark and it has been cleared for use, you should consider filing an application to register the mark with the United States Patent and Trademark Office (USPTO).  There are a few questions that might come to mind when this recommendation is made:

  • Why should I register my trademark?
  • When should I register a trademark?
  • Which of my trademarks should I register?

These questions are addressed below.

Why should I register my trademark?

Trademark rights in the United States are, after all, based on use of the mark in commerce and not on registration.  A registration is not required to use a mark, obtain rights in a mark, or to sue for trademark infringement.  Why then would you spend valuable marketing dollars on obtaining and subsequently maintaining a Federal Trademark Registration?  There are a number of good reasons to proceed with a registration.

First, yes – you can obtain common law trademark rights in a mark simply through use.  However, your common law rights will be limited to the geographic location where you have had actual use. A trademark registration will automatically expand your rights geographically to include the entire United States, except for any areas where there is a prior user on the day the mark is registered.  What does that mean?

The jury in the Tuomey case (U.S. ex rel. Drakeford v. Tuomey Healthcare Systems, Inc.) returned a verdict in favor of the government yesterday, May 8, 2013.  As is well known, this is the re-trial of a case centered on a series of employment agreements that Tuomey Healthcare entered to allegedly capture referrals…

Mark D. Welker and  Scott A. Behrens, Husch Blackwell attorneys in our Employee Benefits and Executive Compensation group, recently addressed key questions employers should ask themselves about Healthcare Reform. Existing guidance in this area is complicated, confusing, and incomplete in many respects.  To access the key questions and examples of basic compliance hurdles and planning strategies, click

On February 1stthe long overdue final rule of the Sunshine Act was released.  The Act aims to increase transparency relating to payments and investments held by physicians and teaching hospitals.  For those many physicians who have entered into some type of contractual relationship with a manufacturer, taking the time to familiarize themselves with…

Once a proposed mark has been chosen, it is always a good idea to have your trademark attorney conduct a trademark search.  Even you are not aware of any other hospitals or medical centers using the mark that does not mean that there are none.  The search will look for marks that are “confusingly similar” to the mark being searched or are likely to cause confusion in the consuming public.  We will discuss the concept of confusing similarity and likelihood of confusion in the context of trademark infringement in a later post.

During the searching process there will again be a difference between descriptive or suggestive marks and fanciful or arbitrary marks.  The more descriptive the mark the more likely it is already in use in some manner by at least one other company.  Many times a descriptive or highly suggestive word or phrase may be in use by several different entities around the country for the same or similar goods or services.  Each use may be slightly different, thereby allowing each of them to co-exist. In this case each descriptive mark will have at best a narrow scope of protectability, perhaps limited to the exact mark for your exact services.  In some cases, if the mark is being used by several entities, it may be that the mark is also available for your use, but you will not be able to protect that mark from later use by yet another entity. Also, you may be advised that there is risk associated with use of the mark simply due to the number of prior users, any of whom  may choose to object to your new use of the mark.

With suggestive marks, the protection is for the mark, or any confusingly similar marks, but not for the “theme” of the mark. For example, a search for the mark “Service with a Heart” for cardiac care services may find several slightly different versions of this mark in use for similar services – You are the Heart of Our Business; Our Nurses Are All Heart; We Will Handle Your Heart with TLC etc. These marks all use the theme of having the word Heart in the mark; but they are not likely to be found to be confusingly similar to each other, even for the same services.

Husch Blackwell attorney Molly Kurt recently addressed this question in a review of cases in which OFCCP has attempted to assert jurisdiction over hospitals as covered federal subcontractors.  Most recently, the U.S. District Court for the District of Columbia issued UPMC Braddock et al. v. Harris, in which the district court affirmed the decision…

On April 17, 2013, the Office of Inspector General (OIG) updated the OIG’s self-disclosure protocol (SDP).  This update significantly revises the SDP first published in 1998, and supersedes the OIG’s related open letters to providers from 2006, 2008 and 2009. To date, the OIG has processed 235 settlements and monetary recoveries in excess of $280…