During the recently concluded 2013 regular session, the Texas Legislature enacted Senate Bill 1191, which established new requirements for hospitals treating victims of sexual assault. The bill is primarily aimed at improving access to forensic examinations for survivors of sexual assault by ensuring that every Texas hospital with an emergency department has personnel who have basic training in forensic examinations. The changes are effective beginning Sept. 1, 2013.

SB 1191 sets out three new requirements for hospitals:

1. Any person who performs a forensic examination on a sexual assault survivor must have basic sexual assault forensic evidence collection training. Training approved or recognized by the appropriate licensing board satisfies this requirement.

2. Texas hospitals that have emergency departments, but which are not designated by a communitywide plan as the primary healthcare facility in the community for treating sexual assault providers, must:

a. Inform sexual assault survivors that the hospital is not a designated facility.

b. Provide sexual assault survivors with the name and location of a designated facility.

c. Inform survivors that they may choose to be transferred to a designated facility for care or receive care at the nondesignated facility.

d. If survivors choose to be transferred to the designated facility for care, stabilize and transfer the survivors to the designated facility after obtaining written, signed consent to do so.

This week we are discussing ways you can use a third party’s mark to identify the third party’s goods or services while 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.

To qualify as proper nominative fair use, the use must not create a likelihood of confusion and the use cannot imply sponsorship or endorsement by the trademark owner where none exists.

The courts have set out a three part test to determine if a use is likely to fall within the rubric of nominative fair use.

  1. The trademark owner’s product or service must not be readily identifiable without use of the trademark.  It is recognized that there are times when it is necessary for a company to refer to a third-party product or service by its trademark.  In those circumstances the law does not require individuals or companies to use “absurd turns of phrase” simply to avoid trademark liability.  XYZ Dental does not need to state that it fits and applies the dental veneers identified by the first three letters of the alphabet.  It can simply factually state it fits and applies ABC dental veneers.

We are proud to announce that Diane J. Romza-Kutz has joined our Chicago office where she will focus on assisting Life Sciences and Pharmaceutical industry clients with federal and state regulatory matters, licensing and Intellectual Property matters.  Diane brings substantial experience handling federal food and drug matters, Federal Trade Commission matters and U.S. Department of

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Last week we discussed ways that you can use a competitor’s mark in comparative advertising.  This week we are discussing ways you can use a competitor’s mark in a descriptive manner under the doctrine of Descriptive Fair Use.   In this type of use, the mark is not being used as a trademark, which greatly reduces or eliminates the possibility of the use being found to be trademark infringement.

Under the doctrine of Descriptive Fair Use, a party, even a direct competitor, may use another party’s descriptive trademark to describe their own product or services.  Descriptive Fair Use requires:

  1. That the mark being used actually describes a person, place or attribute of goods or services; and
  2. The mark must also be used in the normal course of language.

In addition, the mark must be used in the text portions of an ad and not as a banner or in any other manner that sets it apart from the other words in the sentence or paragraph in which it is used. 

On January 17, 2013, the Office for Civil Rights of the U.S. Department of Health & Human Services issued its final rule modifying the HIPAA privacy, security, enforcement, and breach notification rules. The final rule became effective on March 26, 2013, and providers have just over a month left to comply with the new rule.  Compliance is required by September 23, 2013.

Changes to Breach Identification

Under the old standard, a reportable breach was an unauthorized use or disclosure of PHI that posed a significant risk of financial, reputational or other harm to the affected individual. Under the new standard, all unauthorized uses and disclosures of PHI are presumed to be reportable breaches unless, following a risk assessment, it is determined that there is a low probability that the PHI has been compromised.

Previously, we recommended including the following factors in breach risk assessments:

  1. the type and amount of PHI disclosed;
  2. to whom the PHI was disclosed; and
  3. the risk of further disclosure.

Today we are resuming our Branding 101 series!

As we discussed previously, a trademark audit is an important inventory tool that should be used to be sure that the trademark assets of the company are being properly used and protected. Another important function of a trademark audit is to be sure that you are using only your own trademarks; or, if you are using your competitors’ marks, that such use is correct and proper.

In general, a company should only be using its own trademarks. However, there are some circumstances where it is acceptable to use a third party’s trademark in your advertising. These exceptions are often referred to as “fair use” of the other’s mark. There are several fair use exceptions that will be discussed over the next couple of weeks. Today, we will start with a discussion of the proper way to use a competitor’s trademark in a comparative advertisement.

It is possible to avoid trade mark infringement while using the registered trade mark of another company in a comparative advertisement. However, there are rules and guidelines that have to be followed to avoid liability. In addition, apart from the trademark infringement issues, comparative advertising is prone to being considered misleading or deceptive, unless it is done carefully.

Welcome to our new series on HIPAA!

Whether you are feeling a little rusty on HIPAA issues or trying to figure out the new Omnibus rule, we hope you will find this information helpful.  Each week, we will be discussing a new aspect of HIPAA including:

  • HIPAA basics
  • New Omnibus regulations
  • Responding to subpoenas
  • HIPAA disasters
  • Enforcement

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Do you have questions about your institution’s obligations under the Clery Act?

If so, we hope you will join us for a webinar focusing on medical, nursing and allied health school obligations to disclose information about on-campus crime.  We will discuss the essential points for compliance and determination of Clery geography.

The webinar is Wednesday,…

Recent national tragedies have refocused the nation on an important question:

Can or should a physician face civil liability for failing to warn of the dangers posed by a patient who later commits violence?

Husch Blackwell attorneys Greg Minana and Justin Stephens addressed this question under Missouri law in an article published in the May/June issue of Missouri Medicine.   In…

Alzheimer patients wandering off.  Jewelry stolen from a resident’s room.  Arthritic hands unable to maneuver a key in a lock.  All of these can be issues at senior living communities.  However, these issues may become less common as more and more senior communities are moving toward digital key systems.

According to an article in Seniors…