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- He also registered the domain name healthsourcechiropractic. Plaintiff claims that his practice extends beyond the City of Rochester to all of Monroe County and the five contiguous counties and that he draws patients from those areas due to his...
- In , he established a chiropractic franchise, which he named HealthSource Chiropractic, Inc. Before deciding on the name, Dr. Tomshack filed an intent-to-use application with the PTO on November 25, for the HealthSource Chiropractic mark in relation...
- Tomshack and Dr. Divito agreed that the Rochester location would operate under the name HealthQuest Chiropractic because Dr. Beyond renaming their Rochester franchise location, Defendants assert that they have taken additional steps to minimize confusion with Dr. Divito uses the rochesterspinalcare. Divito receives advertising templates that web site, Although Dr. There have been instances of a few advertisements retaining the mark HealthSource. However, Defendants claim they are unaware of any instances of patients contacting or visiting Dr. Plaintiff also argues that as the senior user of the HealthSource Chiropractic mark he has exclusive common law rights within the City of Rochester, Monroe County, and the five contiguous counties as well as on the internet.
- Defendants respond that the Plaintiff does not have priority to use the mark on the internet; and even if he did, it would be unfair to preclude the federal registrant from using its mark on the internet. They further contend that the area within which Plaintiff seeks exclusive rights to use the HealthSource mark is unreasonably large. Standard of Review. Celotex Corp. Catrett, U. The burden then shifts to the non-moving party to show the existence of a disputed issue of material fact, Boyce v. Bank of New York, 7 F. App'x 17, 18 2d Cir. New York City Dept. In considering the motion, all evidentiary inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Services, 22 F. Allstate Ins. A party may not, however, raise an issue for the first time in an opposition to a motion for summary judgment and expect the court to grant leave to amend the pleadings sua sponte. Trademark infringement under the Lanham Act.
- Plaintiff alleges trademark infringement in violation of the Lanham Act, 15 U. Marshak v. Treadwell, F. HealthSource Chiropractic, Inc. The Plaintiff contends, as he did in his motion for a preliminary injunction, that the mark is suggestive and legally protectable without having to show secondary meaning. Determinations of law and fact made by a court when granting or denying a preliminary injunction are not binding on summary judgment. See Univ. Camenisch, U. Based on the complete record, the Court has reviewed its findings and now finds that the mark is suggestive. Marks are classified into four levels of distinctiveness: generic, descriptive, suggestive, and arbitrary or fanciful. Star Indus. Generic marks consist of words which are commonly used to identify the products or services and are not protectable under the trademark laws. Descriptive marks describe the product or service by identifying its qualities.
- See e. Dunsford, F. A suggestive mark can be distinguished from a descriptive mark by considering 1 whether imagination is necessary to connect the mark to some characteristic of the product, 2 whether competitors use the term as a trademark or use the term to describe their product or service, and 3 whether the use of the term would deprive competitors of a way to describe their goods. Menashe v. V Secret Catalogue, Inc. First, HealthSource Chiropractic does not directly describe chiropractic services but requires imagination to make the connection. The consumer must use their imagination to understand that chiropractic services are a health benefit and that the provider of those services is, therefore, a source of health benefits. Second, the Defendant, as a competitor, is using HealthSource as a service mark and business name, not as a term that describes chiropractic services. Lastly, neither party suggests that the term HealthSource describes a quality of chiropractic services.
- Allowing the term HealthSource to be used as a servicemark will in no way remove from the language a way of describing chiropractic services. Tomshack specifically stated that he choose the term HealthSource because other chiropractors were not using that term. Tomshack Decl. Accordingly, this Court finds that the mark HealthSource is suggestive, inherently distinctive, 12 and entitled to protection without a showing of secondary meaning.
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The Plaintiff is a senior user of the HealthSource Chiropractic mark. Federal registration of a mark grants nationwide priority as of the filing date of either an application for registration or an intent-to-use application. See 15 U. Federal registration, however, does not give priority over persons who had used and had not abandoned the mark prior to filing. Allard Enterprises, Inc. Advanced Programming Res. Plaintiff has presented uncontroverted evidence that he used the HealthSource Chiropractic mark in commerce prior to HealthSource Inc.- He registered the healthsourcechiropractic. Dudley Opp. The evidence establishing use in commerce includes: letters to and from health insurance companies and medicare, a contract and advertisements with the Rochester Americans, an advertisement in the Yellow Pages, and newspaper articles. See Dudley Reply Aff. Accordingly, this Court finds that Plaintiff genuine has established use in commerce of the HealthSource mark prior to HealthSource Inc.
- Global Wellness Institute The Global Wellness Institute GWI is a c 3 nonprofit organization with a mission to empower wellness worldwide by educating the public and private sectors about preventative health and wellness. State Health Facts A leader in health policy analysis and health journalism, the KFF is dedicated to filling the need for trusted information on national health issues. The Kaiser Family Foundation is a non-profit organization focusing on national health issues, as well as the U. Unlike grant-making foundations, KFF develops and runs its own policy analysis, journalism and communications programs, sometimes in partnership with major news organizations. This list is not conclusive, please search the library catalog for additional resources.
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- See more information Important Paras Federal registration is required to secure nationwide priority in a mark. See 15 U. Common law trademark rights only extend to the territories in which the mark's adopter sells its products, renders its services, establishes recognition of its mark, or draws its trade. Tana v. Dantanna's, F. A user of a mark who does not seek federal registration risks the possibility that another user will independently adopt the same mark and establish exclusive rights to use the mark in a remote area.
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United Drug Co. The trademark laws allow concurrent use of the same mark by multiple adopters so long as each adopter's use of the mark does not unreasonably intrude on another user's geographic zone of exclusivity. See Harrods Ltd. Sixty Internet Domain Names, F. By allowing concurrent use of a mark, the trademark laws tolerate a certain amount of confusion. Go to Now before the Court are the parties' cross-motions for summary judgment, filed on December 14, Docket No.Working At HealthSource Global Staffing: Employee Reviews | 1medicoguia.com
Defendant moves for summary judgment seeking dismissal of Plaintiff's claims and a declaration that they did not infringe Plaintiff's trademark. Go to Federal registration of a mark grants nationwide priority as of the filing date of either an application for registration or an intent-to-use application. Federal registration, however, does not give priority over persons who had used and had not abandoned the mark prior to filing. A senior user retains common law rights to exclusively use the mark within its territory of prior use. Allard Enterprises, Inc. Advanced Programming Res. A senior user can accrue rights even if the initial uses of the mark are not extensive and do not result in widespread recognition. See Allard Enterprises, Inc. Go to Read More Dudley v. Healthsource Chiropractic, Inc.- O'Brien, Jr. Jude A. Defendants filed an answer and counterclaim, denying the allegations in the complaint and seeking a declaratory judgment of non-infringement. Plaintiff moved for a preliminary injunction on January 29, , which this Court denied in a Decision and Order dated September 30, Now before the Court are the parties' cross-motions for summary judgment, filed on December 14, For the reasons set forth below, this Court grants in part and denies in part Defendants' motion for summary judgment. The Court finds that material issues of fact remain as to the geographic extent of the Plaintiff's trademark rights. Plaintiff's motion for partial summary judgment and for leave to amend the complaint is denied.
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Plaintiff claims that he is the senior user of the mark, having used the mark continuously since in connection with his private chiropractic practice. Plaintiff asserts trademark rights to the exclusive use of the mark in the greater Rochester area and on the internet. Plaintiff contends that he has invested significant time and resources to establish and promote his practice. He has developed relationships with several local sports teams, providing chiropractic services and some cash payments to the teams in return for advertisement and promotional opportunities, such as announcements during games, placement of his logo on the field, commercials during radio broadcasts of games, and advertisements in team magazines. Plaintiff also asserts that he has advertised locally and regionally in the Yellow Pages, magazines, newspapers, restaurants, and on local radio. He also registered the domain name healthsourcechiropractic. Plaintiff claims that his practice extends beyond the City of Rochester to all of Monroe County and the five contiguous counties and that he draws patients from those areas due to his advertising efforts and the geographic location of his clientele.- Defendant HealthSource Inc. Tomshack states that after he retired from private chiropractic practice in he established chiropractic offices in the Ohio area under the name HealthQuest Chiropractic. In , he established a chiropractic franchise, which he named HealthSource Chiropractic, Inc. Before deciding on the name, Dr. He asserts that he was not aware of Plaintiff's practice in Rochester when he applied for registration of the HealthSource Chiropractic mark. Tomshack filed an intent-to-use application with the PTO on November 25, for the HealthSource Chiropractic mark in relation to chiropractic services, physical therapy, and related medical and radiology services.
- On December 5, , after filing the intent-to-use application, he filed for incorporation of HealthSource Chiropractic, Inc. HealthSource Chiropractic was registered on May 20, Both marks were registered to Dr. Tomshack as an individual. Tomshack claims that he licensed the rights to use and sub-license both marks to HealthSource Inc. Tomshack registered the domain name healthsourcechiro. He claims that he chose that domain name because healthsourcechiropractic. Tomshack claims that he was not aware of Plaintiff's web site because it was unavailable or down at the time he registered his domain.
- HealthSource Inc. It currently has franchisees nationwide and claims to have served , patients. In April , Dr. Divito opened a HealthSource Inc. Divito informed Dr. Tomshack that Dr. Dudley was already using the mark HealthSource Chiropractic in Rochester. Tomshack and Dr. Divito agreed that the Rochester location would operate under the name HealthQuest Chiropractic because Dr. Tomshack's Ohio clinics previously operated under that name. Plaintiff asserts that Defendants' use of the HealthQuest Chiropractic mark in the greater Rochester area causes confusion with his own mark. Defendants contend that the use of HealthQuest Chiropractic in the Rochester area is not likely to cause confusion with Plaintiff's mark.
- Beyond renaming their Rochester franchise location, Defendants assert that they have taken additional steps to minimize confusion with Dr. Dudley's practice. Divito's practice from its web site, although the change was reverted for approximately one month in due to a technical error. Divito uses the web site, rochesterspinalcare. Although Dr. There have been instances of a few advertisements retaining the mark HealthSource.
- However, Defendants claim they are unaware of any instances of patients contacting or visiting Dr. Divito's practice when actually looking for Dr. Plaintiff also argues that as the senior user of the HealthSource Chiropractic mark he has exclusive common law rights within the City of Rochester, Monroe County, and the five contiguous counties as well as on the internet. Divito's practice and the use of HealthSource Chiropractic on the internet intrudes on his common law trademark rights and causes confusion in the marketplace. Defendants respond that the Plaintiff does not have priority to use the mark on the internet; and even if he did, it would be unfair to preclude the federal registrant from using its mark on the internet. They further contend that the area within which Plaintiff seeks exclusive rights to use the HealthSource mark is unreasonably large.
- Standard of Review. Celotex Corp. Catrett, U. The burden then shifts to the non-moving party to show the existence of a disputed issue of material fact, Boyce v. Bank of New York, Fed. New York City Dept. In considering the motion, all evidentiary inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Services, 22 F. Plaintiff opposes Defendants' motion for summary judgment, arguing for the first time that HealthSource Inc. Defendants respond that it is improper for the Plaintiff to raise this argument for the first time in opposition to a motion for summary judgment. Federal procedural rules require that the parties' claims and defenses be contained within the pleadings in order to give both parties and the court notice of the issues raised in the case.
Dudley V. Healthsource Chiropractic, Inc. Et Al, No. 6:2007cv06631 - Document 92 (W.D.N.Y. 2012)
Allstate Ins. A party may not, however, raise an issue for the first time in an opposition to a motion for summary judgment and expect the court to grant leave to amend the pleadings sua sponte. Here, the Plaintiff never questioned the validity of the Defendants' federal registration either in his Complaint or in his Answer to the Defendants' counterclaim. Raising the issue for the first time in opposition to Defendants' motion for summary judgment is improper and untimely, and therefore the Court declines to consider the issue in this motion.- Trademark infringement under the Lanham Act. Plaintiff alleges trademark infringement in violation of the Lanham Act, 15 U. To prove infringement of common law trademark rights under the Lanham Act, the Plaintiff must establish that: 1 the mark is valid and legally protectable, 2 the Plaintiff has a right to exclusive use of the mark, and 3 the defendant's use of the mark was likely to create confusion regarding the source of the goods or services. Marshak v.
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