GRAND RAPIDS — A Colorado company wants Spectrum Health to quit using the MedNow moniker for its telemedicine service.
Mednow Clinics LLC, which operates two medical clinics in the Denver area and provides a telemedicine service that it plans to expand to other states, claims Spectrum Health’s MedNow “is likely to cause confusion” among consumers.
In a lawsuit filed in the U.S. District Court for the District of Colorado, Mednow Clinics claims ownership of the name to use for health care services through a federally registered trademark. The lawsuit seeks a court order protecting the trademark and prohibiting Spectrum Health’s use of its “confusingly similar” name, plus damages, profits generated by MedNow, and legal fees.
Mednow Clinics claims it’s also entitled to a court order that requires Spectrum Health “to engage in corrective advertising to alleviate the confusion created by its unlawful use of Mednow’s trademark.”
“(Spectrum Health) has used words, terms, and names or combinations thereof in connection with their offering of health care-related services that are likely to cause confusion or deceive as to affiliation, connection or association with the services offered by Mednow,” the Colorado company claims in court filings.
The company alleges Spectrum Health engaged in willful trademark infringement by using the name, according to the lawsuit.
Mednow Clinics lays claim to the name going back to 2014. An affiliated medical staffing company, Mednow Staffing, has used the name a few years longer and filed to register it with the U.S. Patent and Trademark Office in 2010, according to court filings.
Spectrum Health launched its MedNow virtual health service in late 2015. The service connects patients with physicians by videoconferencing on a computer or via a smartphone or tablet application to consult for minor medical conditions such as a cough, flu, rash or fever.
Spectrum Health declined to comment on the case, other than to issue a written statement.
“We are confident in our right to use the MedNow name for our virtual health service offered throughout Michigan,” Spectrum Health said in a statement issued to MiBiz.
An attorney in Colorado representing Mednow Clinics did not respond to an inquiry from MiBiz.
A COMMON DISPUTE
Disputes between businesses over trademarks are “surprisingly” common, said Steve Underwood, a partner in Grand Rapids at Price Heneveld LLP, a law firm that specializes in intellectual property.
Mednow Clinics’ lawsuit against Spectrum Health, filed on Feb. 21, is typical of trademark infringement cases, said Underwood, who is not involved in the proceedings.
“It has all of the elements of a case of this type,” he said. “It’s the type of pleading that I’ve seen many times in other cases.”
In many instances, lawsuits over alleged trademark infringement get settled before a trial, usually after discovery, Underwood said. Settlements can vary widely and involve “any number of different things,” such as one side graphically altering its trademark or agreeing to its use in a limited geography, he said.
“I’ve been surprised over my career in terms of how inventive they can be in terms of working out a resolution,” Underwood said. “The bottom line is making sure that the public is not likely to be confused by the simultaneous use of the two marks.”
The potential for consumer confusion, particularly for internet-based health services that lack geographic boundaries, represents the key question for the court to consider should the case go to trial.
To decide trademark disputes, the federal court in Colorado uses a six-part test that includes the similarity of trademarks, the intent of a defendant, the similarity of services each side provides and how they are marketed, evidence of actual consumer confusion, and the strengths and weaknesses of a trademark, according to Underwood.
‘LIKELIHOOD OF CONFUSION’
In its court filing, Mednow Clinics said it began using the name in June 2011 for Mednow Staffing and received federal registration in January 2012. The company began using the Mednow name for its medical clinics in 2014 and claims trademark protection through common-law rights and registration with the U.S. Patent and Trademark Office.
Mednow Clinics operates two medical clinics and offers telemedicine services by telephone and video, according to court documents. The company stated it is in the process of extending the telemedicine service to other states, including Nebraska, Wyoming and Kansas.
The company alleges that Spectrum Health in September 2015 filed an application with the U.S. Patent and Trademark Office to use the name for health care services, but the agency rejected the application “on the grounds that there was a likelihood of confusion with Mednow’s Mednow Staffing registered mark,” according to the court filings.
“Specifically, the examining attorney concluded that the two marks ‘are highly similar in terms of appearance, sound, connotation and overall commercial impression,’” according to the lawsuit. “In addition, the examining attorney concluded that the services [the] defendant planned to offer under the MedNow mark were related to the services offered by Mednow. The examining attorney, therefore, concluded that ‘it is likely that consumers who encounter the parties’ services will falsely conclude that they originate from the same source.’”
Mednow Clinics also asserts that Spectrum Health in November 2016 sought to cancel the company’s trademark registration for Mednow Staffing, believing that it was no longer in use. Spectrum Health later withdrew its petition after learning otherwise, Mednow Clinics claims in the court documents.
An attorney for Mednow Clinics demanded in November 2017 that Spectrum Health cease using the Mednow name for health-related services. The company claims Spectrum Health never responded to that demand, or a follow-up cease-and-desist letter sent in January.