Social Media Makes Healthcare More Personal

CHkLJHuWEAEyXu5The Mayo Clinic Center for Social Media has a mission to personalize healthcare by using social media. Crazy – you say? By following best practices, healthcare providers can share their stories. True – covered entities and their business associates may not share protected health information. But we can share stories about our institutions and share health information.

On Facebook Groups, we can engage with visitors to our pages and share health tips in closed groups. Will we meet some criticism? Yes, we will. But we gain by learning from customer criticism. Better yet, we make new friends by sharing more information. Criticism can be an opportunity when you have a playbook that details how to handle criticism.

Can we communicate in in 140 characters? Yes, particularly when we add photos to our posts. Images convey information graphically when words fail. Don’t share photos of identifiable patients, but use medical or other images that also convey the message. Can we share information from third parties other than patients? Not by scraping the content. Infringing content causes legal issues. Luckily, most social medium platforms provide tools that permit you to share website pages, including a photo from a page you share.

Don’t be shy, tell your story, and share your patients’ stories with their permission. Let’s make healthcare more approachable!

Coincidence or copyright infringement? You be the Judge.

Sam Smith says that it’s a coincidence that his song “Stay with me” is similar to Tom Petty’s “Stand my ground” but won’t hang his hat on independent creation, where one author creates an identical or similar work without access to the previous work. Perhaps Mr. Smith is concerned that he may have subconsciously infringed Mr. Petty’s work since he so quickly offered a writer’s credit and royalties to Mr. Petty. With pop music, access to the original work is presumed because no one can avoid hearing pop music in the doctor’s office and shops. If the two works are strikingly similar to the ears of an ordinary listener, it’s copyright infringement. So you be the judge and let us know what you think.

George Harrison ‘stood his ground’ and ‘wouldn’t back down’ when Bright Tunes sued him for copyright infringement of Ronnie Mack’s “He’s So Fine” (made popular by the Chiffons in 1963) with Harrison’s “My Sweet Lord.” The court found him liable of subconscious copyright infringement.

Killing the Buzz: The “Highs” and Lows of Marijuana-Related Trademarks

KumarHeadshotThis post is the first in a series by Kumar Jayasuriya, attorney and Ober’s multi-talented Legal Research Manager.

 

May a company register a trademark connected to the use of a controlled substance, such as marijuana?

Recently, a federal court said “Yes.”  Started in 1974, the periodical magazine High Times reports on the medical and recreational use of marijuana and continues to advocate for the relaxation of state and federal drug laws.  High Times’ publisher, Trans-High Corp. (“THC”), owns the trademark HIGH TIMES for use on, among other things, “books about cannabis” and “magazines about hemp.”  In August of last year, THC filed an infringement lawsuit targeting Richard Reimers, a Washington State-licensed marijuana dispensary owner operating under the name High Time Station (“Reimers”).  In response to the suit, Reimers counterclaimed that THC’s trademarks be cancelled because THC had allegedly used them on unlawful goods not listed in the registration certificates.

Reimers’ counterclaim alleged sale of drug paraphernalia and controlled substances based on the claim that THC’s act of printing advertisements by third-party companies in its HIGH TIMES magazine violates the Controlled Substances Act.  In fact, the United States Patent and Trademark Office is expressly permitted by statute to inquire about compliance with federal laws to confirm that the trademark applicant’s use of the trademark in commerce is in fact lawful.  Use of a trademark on unlawful goods is grounds for cancellation.

However, the United States District Court for the Eastern District of Washington dismissed Reimers’ counterclaim upon a finding that a trademark registration is only vulnerable to cancellation if the goods and services listed in the registration are proven to be unlawful. None of the goods and services in the THC registrations were unlawful, said the Court, because the Controlled Substances Act expressly permits publications and advertisements “which merely advocate the use of a similar material, which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction in a Schedule I controlled substance.” 21 U.S.C. 843.

The court dismissed (with prejudice) Reimer’s counterclaim for cancellation of THC’s federal registrations. This is not the last word on trademarks related to  unlawful goods.  In addition to the Reimer case in Washington State, THC has filed similar trademark infringement claims in Texas, New York and Colorado. It is just the beginning for protection of marijuana related marks.  As more and more lawful marijuana-related businesses spring up in the wake of marijuana legalization, trademark use will be only one of the many issues that presents a case of first impression to the nation’s courts.

Trans-High Corp., Inc. v. Richard Reimers, No. 2:14-CV-00279-LRS, (E.D. Wash. Jan. 12, 2015).

 

5 Reasons Not to “Right-Click” a Google Image for Your Blog

Google and other image search engines are a free and easy way to get visual information. Search engines are not the best way to find an image for your blog. Your copy of an online search image may not cause trouble if used in an off-line collage or physical artwork. Use of that same image online, however, carries enormous risk. Unfortunately, search engine results obscure image ownership information.  Images bounce around the internet as they are screen-captured, downloaded from social media, mixed with other material, and shared by users. The owner of the website where you found the image likely does not own the image or provide permission from subjects appearing in the image.

Nevertheless, the photographer and each party or location depicted in the photo has rights in the image. Obtaining each of their permissions to use the image for your particular personal, commercial, or professional use is required to avoid liability. Although most images online are of unknown provenance, people and businesses continue to use online search images without permission. Several clients this year received demand letters relating to the use of online images without permission. Here are a few reasons to avoid risk by not right-clicking an image:

  1. Photo Trolls are Copyright Owners with Registered Claims to Copyright. While true, certain copyright owners are very aggressive about policing their rights. They use electronic infringement detection tools to identify potential infringement of their copyrights then demand several thousand dollars per image to settle. Ignore their demand letters at your peril. (more…)

FTC Seeks Your Comments on Proposed Verifiable Parental Consent under COPPA

On November 19, 2014, the Federal Trade Commission announced that it is seeking public comment on a second proposed verifiable parental consent method by AgeCheq, an online privacy protection service. The Children’s Online Privacy Protection Act (COPPA) requires children and family-friendly website operators and app developers to (1) post privacy policies and (2) notify and obtain verifiable consent from parents prior to collecting, using, or disclosing personal information from children under the age of 13.

There are considerable challenges to obtaining verifiable consent from parents in real time–particularly for use of online services by children. The rule lays out a number of acceptable methods for gaining verifiable parental consent and includes a provision allowing parties to submit new consent methods to the FTC for approval. Age Cheq’s new proposal eliminates the need for paper signatures by providing a digitally signed parental declaration authenticated by a verification code on the parent’s mobile device.

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