Monthly Archives: July 2020

The Importance of Policing Your Trademark

Building a brand is difficult, especially one that sets you apart from your competitors and instills confidence and association with your product from consumers. But building a brand isn’t the end, it is only the beginning. Maintaining and policing your mark is just as important, if not more important. Once your brand starts accumulating client goodwill, competitors and knockoffs will invariably want to “steal” some of that goodwill for themselves. These competitors will seek to confuse your clients and potential clients – using the goodwill you have worked so hard to build up for their own gain.

Taking steps to police your brand and the marks associated with it requires affirmative actions to seek out these copycats and to then stop them. Not only is this a good business practice, it is legally required if you wish to keep the legal rights to your mark.

The courts have held that a “trademark owner has an affirmative duty to police his trademark.” Wisconsin Cheese Group, Inc. v. V & V Supremo Foods, Inc., 537 F. Supp. 2d 994, 1001 (W.D. Wis. 2008). If a trademark owner allows an infringing mark to continue in commerce for too long, the owner may lose any rights to prevent the continued infringement in the future. Id.

Importantly, courts have held that trademark owners cannot just hide theirs heads in the sand and be willfully ignorant of potential infringing uses. Trademark owners must affirmatively take actions to seek out infringing uses and take affirmative steps to prevent them. See Wisconsin Cheese Group, supra (“lack of actual knowledge of infringement does not automatically excuse a trademark owner from unreasonable delay”) and Chattanoga Mfg., Inc. v. Nike, Inc., 301 F.3d 789, 793 (7th Cir. 2002) (“a trademark owner is ‘chargeable with information it might have received had due inquiry been made.’”).

Because of this, if you have a trademark or servicemark that you wish to keep, you need to take affirmative steps to ensure that no one else is infringing on it. Otherwise, all your hard work and customer goodwill may have been for nothing.

What Steps Can Trademark Owners Take to Protect Their Marks?

One of the most important things a mark owner can do is to be knowledgeable of their industry and the players in that industry. To do this a trademark owner should:

  • Know who your competitors are and who the new entries into the market are (industry groups and trade associations are great for helping with this);
  • Perform internet searches for your mark to know who is using it and in what context; and
  • Importantly, know who is filing federal registrations with marks that are confusingly similar to your mark.

For the last entry, it involves periodically checking the United States Patent and Trademark Office’s (“USPTO”) trademark database to see the new filings and what goods or services they identify and, from there, determining if any new filings have a likelihood of consumer confusion with your mark.

How Can Smith & Associates Help You?

While anyone can search the USPTO’s trademark database, understanding their impact is a whole other issue. In fact, there are numerous companies that will search the USPTO database for you and send you their results periodically each year. Unfortunately, a listing of registration results does not help a trademark owner know if this is something that requires action.

This is where we can help. Smith & Associates offers very affordable, flat-fee pricing to monitor your marks against the USPTO database. Our service doesn’t just give you a listing of search results, it gives you actionable advice based on the search so that you will know a) if anyone is potentially infringing on your mark and b) what actions you should take to prevent this moving forward. More importantly, if you have questions about the results, you will have an experienced trademark attorney to discuss your results and your options.

If you would like to have us monitor your marks against the USPTO database, contact an experienced attorney at Smith & Associates for a free consultation to discuss your options.

The IPN/PRN Trap

The stresses put on medical professionals, especially licensed physicians and nurses, can be extreme. Long hours, emergency responses, and dealing with patients’ severe medical issues – some who will not survive – can take an emotional toll on even the strongest doctor or nurse. However, when a medical professional turns to alcohol or drugs to help cope with these issues, the outcomes can be disastrous for both the patients and the professional.

Acknowledging the stresses that medical professionals face, the Florida Legislature authorized the creation of the Professional Resource Network and the Intervention Project for Nurses to help medical professionals (and other licensed professionals) with alcohol and drug abuse problems.

While the programs have lofty and laudable goals, the reality is that, for many professionals who enter these programs, PRN and IPN can become an inescapable nightmare.

How the Trap is Set

The problem starts when a doctor or nurse does something wrong. It can be directly related to patient care, such as showing up to work hungover or impaired, or it can be unconnected to work, such as being charged with Driving Under the Influence (“DUI”). In any case, the Department of Health (“DOH”), which oversees both the Board of Medicine and the Board of Nursing, is notified.

Once DOH is notified, they will evaluate the claim. If DOH believes that the infraction impacts patient care (and DOH almost always believes that the infraction will affect patient care), they will issue an administrative complaint against the doctor or nurse seeking any number of potential remedies, including the imposing of fines and the revocation of the medical or nursing license.

However, once the administrative complaint is served, DOH will typically offer what seems like a very reasonable resolution, especially when the potential alternative is having the license revoked. That resolution involves the doctor or nurse agreeing to sign up for PRN or IPN and have their license suspended until they complete the program. DOH will also usually require that the investigative costs be paid as well.

The doctor or nurse, faced with the choice of either accepting this settlement or being forced to hire an attorney to fight these claims and potentially lose their license, believes that this is a reasonable solution and agrees to the settlement.

Once the agreement is signed and incorporated into a Final Order, the doctor or nurse must sign an agreement with PRN or IPN, agreeing to follow all its terms and agreeing to follow whatever medical treatment the program believes is appropriate, otherwise the doctor or nurse will be terminated from the program. Now the trap is set.

The Trap Gets Sprung

What many doctors and nurses who enter PRN or IPN do not realize is that, while it is an independent, non-governmental entity, if it cancels the contract with the doctor or nurse, that is an independent reason for DOH to revoke the doctor or nurse’s license. Fla. Stat. § 456.072(1)(hh). Thus, when PRN or IPN “recommend” a course of treatment – no matter how extreme or expensive – it must be followed, or the contract will be terminated. If the contract is terminated – DOH will almost certainly seek to revoke the license.

What happens to many people involved in these programs is that, regardless of what brought them there, they are “prescribed” an intensive program that involves no alcohol and bears significant costs, such as Intensive Outpatient Program Treatment. There is no opportunity for the doctor or nurse to appeal this decision – they must comply.

This is where the trap gets sprung. The doctor or nurse is already out of work due to the license suspension and now they are spending any accumulated savings on the initial program. Further, despite whether the person believes they have an alcohol problem or not, they are forbidden from having any alcohol. If that doctor or nurse has a urine test positive for alcohol (or voluntarily admits to using alcohol), even if it was a single, social drink – the trap is sprung.

Once there is any non-compliance, no matter how small, the provider will then “prescribe” an even more extreme program such as inpatient treatment. These programs can cost over $40,000 and must be attended or the contract will be cancelled. People who have already had their license suspended, who are out of work, and who have already spent any savings they had on the prior treatment, cannot afford this treatment. Regardless, if they do not attend, the contract will be cancelled and DOH will then seek to revoke the license. The practitioner is now trapped – pay money they don’t have for treatment they don’t need or lose their license.

“Good Cause” Defenses

The statute at issue allows DOH to revoke the license for:

Being terminated from an impaired practitioner program that is overseen by a consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or participant contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.

Fla. Stat. § 456.072(1)(hh) (emphasis added).

A reasonable person may think that not having the money to comply with the treatment plan would constitute “good cause” or that being prescribed a treatment plan that doesn’t align with the problems the person is facing would constitute “good cause,” but the administrative law judges (“ALJ”) and the Department of Health would disagree.

While “good cause” is not defined in the statute, ALJs have limited its application to situations that make it almost superfluous for the Legislature to have included. As one ALJ wrote, “[s]ome examples of good cause for failing to comply with the terms of an impaired practitioner monitoring contract, as found in one DOAH case, include serious and unavoidable events in the life of a practitioner; such as the return to active military duty, the acute appearance of a disabling medical condition, or death of the practitioner.” Department of Health v. Grace Mary Guastella, M.D., DOAH Case Number 2013-12197 (DOAH 2017). Thus, according to these ALJs, unless you are active duty military, so disabled as to not be able to practice, or dead, you don’t have good cause to violate the treatment plan.

Once a practitioner is trapped in PRN or IPN, even if it only started out as “drinking alcoholic beverages, if only socially on rare occasion,” whatever the recommended course of treatment is, no matter how intense or expensive, it must be followed or the contract will be terminated and DOH will seek to revoke the license. Department of Health v. Grace Mary Guastella, M.D., DOAH Case Number 17-2923PL (DOAH 2018).

At least as the law stands, as interpreted by DOH and ALJs, good cause is rare and doesn’t provide the protection that a reasonable person reading the statute would believe it would provide.

Potential Challenges

One potential challenge that a practitioner caught in this trap could make is that the “good cause” exception has been read too narrowly and should encompass the ability to pay for the treatment and the medical necessity of the treatment. To date, no successful challenges to the existing “good cause” factors has been made. However, with passage of Amendment 6 to Florida’s Constitution in 2018, judges no longer need to defer to an administrative agency’s (like DOH) interpretation of a statute. See http://smithlawtlh.com/agencies-longer-afforded-deference-interpretation-rules-statutes/

In almost any other context, before a court can impose a penalty due to a person’s failure to pay some fine or court ordered payment (e.g., restitution, court fines, and child support), the Court must first determine if the person has the ability to pay. If the person does not have the ability to pay, then the Court cannot punish the person for not paying. See Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011) (“an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violates due process.”); Vincent v. State, 699 So. 2d 806, 807 (Fla. 1st DCA 1997) (“In order to revoke a defendant’s probation based on a failure to pay restitution, a trial court must find that the defendant had the ability to pay the restitution not only before ordering restitution [but also] before revoking probation for failure to pay restitution imposed as a condition thereof.”); and Pompey v. Cochran, 685 So. 2d 1007, 1009 (Fla. 4th DCA 1997) (“finding that Pompey’s incarceration was unlawful because there was no evidence at all to support the trial court’s affirmative finding that the petitioner had the ability to pay a [back child support].”).

A strong argument could be made that the ALJ’s limited interpretation of the “good cause” exception and the imposition of sanctions without determining the practitioner’s ability to pay violates the statute and the practitioner’s due process rights.

There is also a potential challenge to the entire PRN/IPN setup as a violation of the Florida Constitution. Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Interpreting this, the Court has held that, while power can be delegated to other branches, the Legislature must define clear guidelines and limitations in the statute. Specifically, the Court has held, that “statutes granting power to the executive branch must clearly announce adequate standards to guide … in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Florida Dept. of State, Div. of Elections v. Martin, 916 So. 2d 763, 770 (Fla. 2005).

Here, the Legislature establishes the Impaired Practitioner Programs in Florida Statute § 456.076. That statute provides no limits or guidance as to what can be contained in the participant contract, the limits on the treatments these programs can require, or any way for a participant to appeal or seek a second opinion. Further, as described above, Florida Statute § 456.072(1)(hh) allows DOH to revoke a participant’s license if they are terminated from a program, but provides no direction or guidance as to what grounds constitute good cause for a program to terminate a participant. In short, the Legislature has improperly delegated its authority to a third-party.

Based on the foregoing, there is a strong argument to be made that both PRN and IPN are unconstitutional and, without additional guidance from the Legislature, they should not be permitted at all or, at the very least, DOH cannot take action against a practitioner for not complying with the terms of a PRN or IPN contract or course of treatment.

Conclusion

If you are being offered IPN or PRN as a term of settlement or if you have already agreed to PRN or IPN and are having trouble meeting their requirements, you should contact an experienced health care attorney to discuss your rights.