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Health Marketing Mistake of the Week

By James Hastings on April 8, 2019
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A relatively simple health marketing mistake could be costly to your and your brand.

This past week we were looking at a couple of health marketing agencies that were touting the success of their clients’ recent marketing campaigns.  One campaign for a regional hospital caught our attention.  It is an example of great marketing that could quickly go bad.

The Marketing Campaign.   The centerpiece of the hospital’s marketing campaign was a new tagline.  The tagline was meant to illustrate the innovation of the hospital’s various technologies.  The slogan was used across various marketing channels, including print, web, social, and a Super Bowl spot that aired on regional TV.   Based on some back of napkin calculations, it is estimated that total marketing spending for the entire campaign was easily in the high-six to low-seven figures.

The Diagnosis.   The tagline was never cleared nor was a trademark application filed with the U.S. Patent and Trademark Office.

Risk Factors.    The failure to conduct a trademark search could result in a third-party’s claim of trademark infringement.  If found liable, the hospital could be enjoined from using the tagline, and also be ordered to pay up to triple damages (if the infringement was willful) and potentially the plaintiff’s attorney’s fees.  In addition, the hospital could be ordered to change its marketing campaign name.  This is in addition to having to be forced to expend additional sums of money in either corrective advertising or adopting a new name and campaign.

The cost of prevention.  A full trademark search, opinion letter, and filing of the trademark with the USPTO would have been approximately $2,500.00.   If the total health marketing campaign spend was $500,000, this would have been approximately .5% of the overall budget.

The Lesson.   Healthcare brands are under increasing competition, particularly among local hospitals and clinics.  That is why marketing compliance training is becoming more and more important.   Before you or your team adopt a new name for a health marketing campaign, hospital name, or branded community outreach effort, it is advisable to conduct a full trademark search.

To discuss your healthcare branding needs, feel free to contact the author to discuss your options for prevention and protection.

Photo of James Hastings James Hastings

James Hastings is an attorney with the U.S. Trademark Trial and Appeal Board Practice Group of Practus, LLP.  He is a certified mediator of the INTA Panel of Mediators, an international roster of select professionals with expertise in trademark dispute resolution.

James is…

James Hastings is an attorney with the U.S. Trademark Trial and Appeal Board Practice Group of Practus, LLP.  He is a certified mediator of the INTA Panel of Mediators, an international roster of select professionals with expertise in trademark dispute resolution.

James is the publisher of Trademark Opposition Lawyer, an online advisory dedicated to helping brand owners understand important issues that arise in proceedings before the U.S. Trademark Trial and Appeal Board.  His commentary has been featured on Corporate Counsel, Law.com, LegalZoom,and other digital publications.

He devotes his practice to trademark opposition and trademark cancellation proceedings before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office.  Over the course of his career, he has represented the interests of numerous national and international brand owners in trademark litigation matters in both the U.S. District Courts and before the U.S. Patent and Trademark Office.

Prior to his current affiliation with Practus, LLP, James was in-house counsel to a New England-based catalog retailer, where he was responsible for developing trademark portfolio acquisition, protection, and licensing strategies.  Earlier in his career, he was a partner and associate at intellectual property law firms in New York, where he was engaged in trademark portfolio and intellectual property protection work on behalf of well-known fashion and personal care brands.

James is a member of the New York and Connecticut bars.  He has lectured at University MBA programs and legal education conferences on the issues of trademark protection and e-commerce law.

Past and Present Membership

  • International Trademark Association
  • Association Corporate Counsel
  • National E-tailing and Mail Order Organization of America

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  • Posted in:
    Business and Commercial
  • Blog:
    Healthcare Marketing Law
  • Organization:
    Rothwell Figg
  • Article: View Original Source

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