Selecting a strong trademark is the key to being able to protect the trademark.  As we discussed last week, the first and central step in branding is selecting your facility’s trademarks, which promote a provider’s reputation, helping it stand out among its competition.  When choosing a name for a product or service, the inherent strength of mark should be considered, as this will affect many things going forward from the cost of a search to your ability to stop others from using similar names.

There are five categories of marks, each of which comes with its own level of legal protection. From least to most protected, they are:

  1. GENERIC: Names like “emergency room” or “doctors” – these cannot be trademarked.
  2. DESCRIPTIVE: Descriptive marks immediately provide information about the service or product.  These types of marks can be protected but only if they have acquired distinctiveness through use in commerce. Descriptive marks include laudatory marks (“Best Dental”); geographic marks (“North Shore Hospital”); and surnames (“Williams Orthopedics”).
  3.  SUGGESTIVE: These marks indirectly provide information about the goods and services requiring the consumer to make a mental step or connection to determine what the services are (“Service with a Heart” for a cardiac center; “Papoose” or “Joey” for pediatric services).  Suggestive marks are immediately protectable; however the scope of that protection is not as broad as for arbitrary or fanciful marks.
  4.  ARBITRARY: These marks, like “Apple” or “Amazon,” are real words but there is no connection between the words’ meaning and the services or products it is used for. These marks enjoy broad, strong protection.
  5.  FANCIFUL: These marks are made-up words, like “Xerox,” “Google,” or “Viagra,” created specifically to be used to identify the source or origin of certain goods or services. These are the most strongly protected marks.

Hospitals and other healthcare facilities have traditionally been named with geographic designations or with the name of a famous person or in other ways that would be considered “descriptive.”  These names, after long years of use are quite likely to have acquired “secondary meaning” so they are now protectable trademarks. Many such marks have become quite famous and will enjoy strong trademark protection despite their humble beginnings.  Therefore, the hospital will have the ability to police and control use by competitors of similar names.  However, it is unlikely that the hospital will be able to control all use of the descriptive elements of its name and trademark.

On April 16, in a win for Purdue Pharma, the maker of OxyContin, the FDA issued a decision approving updated labeling for Purdue’s reformulated, abuse-resistant OxyContin tablets. The decision places drug makers on notice that the FDA will not accept or approve any abbreviated new drug applications (generics) that rely upon the agency’s December 1995 approval of Purdue’s original OxyContin formulation.

The FDA’s decision was issued just as Purdue was set to lose its patent on the original formulation of OxyContin. Loss of this patent would have opened the opioid-painkiller market to competition from generic drug makers. But now, going forward, new applications for generic “copycat” forms of the drug must meet Purdue’s approved, abuse-resistant standard, without infringing upon Purdue’s patent for reformulated OxyContin, which lasts until 2025.

Concern over abuse of the well-known painkiller was central to the FDA’s decision. The agency explained, in a press release accompanying its decision: Purdue’s “labeling indicates that the [reformulated] product has physical and chemical properties that are expected to make abuse via injection difficult and to reduce abuse via the intranasal route (snorting).” The press release further stated that: The original formulation of OxyContin “was abused, often following manipulation intended to defeat its extended-release properties. Such manipulation causes the drug to be released more rapidly, which increases the risk of serious adverse events, including overdose and death.”

According to the New York Times, the FDA’s decision was pushed by some state attorneys general, as well as pain treatment experts, who argued that the release of generic versions of OxyContin would feed street demand for the narcotic. Critics, however, have argued that the decision will result in higher prices for OxyContin, as the reformulated drug will not face generic competition.

“Branding” is one of the most popular buzz words in the advertising and marketing arena.  But what does it mean to have a “brand” and what should you be willing to do to create and maintain your “brand”?  In today’s technology-driven economy, even the local hospital and primary care physician’s office have to compete for business. …

If you have been struggling to figure out the risk assessment requirements of the Final HIPAA Omnibus Rule, then you are in luck.  Join us for a webinar!  Husch Blackwell attorneys Pete Enko and Peter Sloan along with Director of Information Management Consulting Deb Juhnke will present the Who, What, When, How and Why…

In August 2002, the United States Health and Human Services Office of Inspector General (HHS-OIG) issued a Special Advisory Bulletin relating to offering gifts and inducements to beneficiaries of Title XIX (Medicaid) programs.  Since the States operate their Medicaid programs under the direction of HHS-CMS, it has generally been considered in the health law community…

The Texas Medical Board met on April 12 and decided to change their unwritten physician profile website policy. The board decided to remove from physician profiles any applications for temporary suspensions filed by board staff which were ultimately denied by the board’s temporary suspension panel in the physician’s favor. The new policy is good news…

The head of ICU at the Stony Brook University Hospital on Long Island wants to change how medical professionals respond to cardiac arrest.

The Guardian is reporting that the British-trained physician, Sam Parnia, M.D., specializes in resurrection.  His patients can be dead for several hours before he is able to resuscitate them and restore them…

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New Hampshire law applies a hybrid design-defect standard that imposes liability for harm caused by a drug product if the drug product, in light of the manufacturer’s warning on the label, is unreasonably dangerous. Does such a framework avoid federal preemption issues that have doomed failure to warn negligence claims premised on taking allegedly dangerous generic pharmaceuticals? That was the question addressed by the Supreme Court at oral argument in Mutual Pharmaceutical Co. v. Bartlett, the third in a trilogy of cases addressing preemption of state tort claims against drug manufacturers based on federal laws mandating prescription drug labeling requirements. While several justices appeared uncomfortable with the possibility of creating a system that allowed for FDA approval to serve as both a ceiling and a floor for generic drug liability, overall it appeared that the Court would find preemption, consistent with the defendant and Solicitor General’s arguments.

Three years ago in Wyeth v. Levine, the Court held that a state law failure-to-warn claim related to a branded pharmaceutical was not preempted federal drug laws. The next year in a 5-4 decision, the Court held in PLIVA, Inc. v. Mensing that a negligence claim for failure to warn by a generic manufacturer was preempted by federal law because the Hatch-Waxman Act (which sets up the generic pharma framework) allowed for no discretion in what a generic pharmaceutical manufacturer can put on its label.

Mutual comes to the Supreme Court after the First Circuit upheld a New Hampshire Federal District Court’s jury verdict premised on the finding that a generic version of sulindac was unreasonably dangerous. The arguments before the Court centered on whether a design defect claim was somehow different from a failure to warn claim, and therefore merited a different result than the one reached in PLIVA.