Blue Cross / Blue Shield Says Study Pointing Out Failures Of Its Doctors... Violates Its Trademark

from the that's-not-how-tardemark-works dept

Wed, Jul 27th 2011 9:46am — Mike Masnick

Don't mean to sound like a broken record, but the purpose of trademark is consumer protection from confusion. The idea is that someone shouldn't be able to sell you "Bob's Cola," while labeling it "Coca Cola," because that's a form of fraud on consumers. Tragically, over the last few decades, lawyers have been able to reposition trademark law not as a "consumer protection" law, but as "intellectual property." This leads trademark holders to increasingly pretend that trademark law grants them additional rights and abilities and to use trademark law in ways that simply are not granted under the law.

For example, the Massachusetts Blue Cross/Blue Shield apparently thinks that you can't publish a study criticizing its doctors without permission thanks to trademark law. The company's VP of Communications contacted the authors of the study (which pointed out that BCBS doctors didn't always respond well to patients needing psychiatric care), telling them:

�We are VERY concerned about the use of BCBSMA�s name and brand in a published study without BCBSMA authorization. We�d like to talk with you about that.�

You may be concerned, but shouldn't you be a bit more concerned about the results of the study that call into question the practices of your doctors? Because the use of the name is perfectly legal and in no way touches on trademark law. No moron in a hurry is going to have a "likelihood of confusion" here, thinking that this study was somehow a product of BCBSMA. And, of course, in trying to intimidate the study's authors, all BCBSMA has done is... draw a lot more attention to the study and the reported failings of the organization.

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Filed Under: doctors, study, trademark
Companies: blue cross blue shield

30 Comments

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anonymous, 27 Jul 2011 @ 9:56am

My respect for the law and our government and our society decreases daily.
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MrWilson, 27 Jul 2011 @ 10:04am

Re:
Just when you think they've hit rock bottom, someone pulls out a fancy drilling machine and goes for broke.
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Anonymous Coward, 27 Jul 2011 @ 10:05am

"tardemark"
I've never seen such an appropriate typo in a while.
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HothMonster, 27 Jul 2011 @ 10:07am

Re:
at least you fulfilled the law of making a mistake when calling out others mistakes
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Anonymous Coward, 27 Jul 2011 @ 10:17am

1- Study slams Blue Cross/Blue Shield for some unethical practices;
2- Blue Cross/Blue Shield tries to use Trademark law to shut down that study;
3- Q.E.D.
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Anonymous Coward, 27 Jul 2011 @ 10:20am

Re: Re:
Streisand effect flavored :-)
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Ninja (profile), 27 Jul 2011 @ 10:23am

Re:
1- Study slams Blue Cross/Blue Shield for some unethical practices;
2- Blue Cross/Blue Shield tries to use Trademark law to shut down that study;
3- Streisand Effect. Ppl start avoiding BC/BS;
4- ????
5- Profit! Oh wait....

Fixed.
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out_of_the_blue, 27 Jul 2011 @ 10:31am

"Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
According to a bottle I just looked at. (The upper case is AS PRINTED.)

Now, a physical good can be trademarked and protected against anyone else so labeling some competing goods, but with Blue Cross / Blue Shield, their product is... organizing services, I suppose -- to make a pun since it's medical. Anyway, my point is that even allowing this corporation a trademark AT ALL when they've no product of physical goods is a primary mistake that should be undone.
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Anonymous Coward, 27 Jul 2011 @ 10:32am

Re: Re:
1- Study slams Blue Cross/Blue Shield for some unethical practices;
2- Blue Cross/Blue Shield tries to use Trademark law to shut down that study;
3- Streisand Effect. Ppl start avoiding BC/BS;
4- Start a different insurance company
5- Profit!
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Atkray (profile), 27 Jul 2011 @ 10:34am

Re: Re:
"Just when you think they've hit rock bottom, someone pulls out a fancy drilling machine and goes for broke."

The mind boggling part is how consistently they drill right through rock bottom.
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:Lobo Santo (profile), 27 Jul 2011 @ 10:37am

Re: Re: Re:
Well, apparently "rock bottom" is something of a misnomer. Perhaps "lava bottom" would be more appropriate...
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ken (profile), 27 Jul 2011 @ 10:39am

What they are doing is rendering studies useless if only positive results are allowed to be published. This effectively kills any credibility any study might have.
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HothMonster, 27 Jul 2011 @ 10:40am

the trademark is on the name idiot not the product, i guess i shouldn't really expect you to understand anything. The name is trademarked so someone else cant offer the same or similar service and say they are BC/BS.

the coca-cola trademark is on the name so i cant put brown sugar in water and sell it as coke. If i actually recreated the recipe of coke and sold it as something else that wouldn't be a trademark issue that would be a patent or copyright issue.
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Anonymous Coward, 27 Jul 2011 @ 10:41am

Re:
hmm that was suppose to go to OOTB's post, i swear i replied, oh well
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BC/BS legal team, 27 Jul 2011 @ 10:43am

Re:
i find your evaluation of my evaluation of the value of studies violates my tardemark please cease and desist with your logic immediately
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Josh in CharlotteNC (profile), 27 Jul 2011 @ 10:45am

Re: Re: Re: Re:
Molten rock is only "lava" when its on the surface - we're well underground at "magma" level.

Once we've passed nickel/iron inner core level, what's below that?
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Anonymous Coward, 27 Jul 2011 @ 10:48am

Re: Re: Re: Re: Re:
Hell
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Harrekki (profile), 27 Jul 2011 @ 11:13am

Re: Re: Re: Re:
would be more helpful too, I would think.
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David Liu (profile), 27 Jul 2011 @ 11:20am

Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
7/10.

Would've gotten more, but you didn't bash Mike this time.
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Anonymous Coward, 27 Jul 2011 @ 11:50am

Re: Re: Re: Re: Re:
Another magma level, then another rock level, then an atmosphere level, and then there's an empty space until we reach the Moon.
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CommonSense (profile), 27 Jul 2011 @ 11:57am

Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
hmmm, I think you're confused. "Coca-Cola" the words as they are written, are the trademark, or that particular company's (COCA-COLA COMPANY) official mark in that trade (soda). The product itself is not what they are talking about.

Take for instance, Listerine. Their product is mouth wash, their trademark is the name "Listerine". They sell the formula for their product to the stores so that stores can make cheaper store brand knock-offs. The store's product is basically the same thing, maybe a few small changes, but they can never call it Listerine, because Listerine is what is trademarked, not the product itself which they can produce all they want once said formula is purchased.
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PRMan, 27 Jul 2011 @ 12:46pm

Re: Re: Re: Re: Re: Re:
And that's where we are...
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DCL, 27 Jul 2011 @ 1:14pm

Re: Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
And the knockoffs can still add a sticker that says "Compare to the active ingredients in Listerine" without being sued.
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John William Nelson (profile), 27 Jul 2011 @ 1:18pm

Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
A physical good can not be trademarked. Physical objects can, but that is different. For example, packaging can be trademarked. A Coca-Cola bottle design is indeed trademarked because it operates as a source identifier for the good being sold�with Coke, it would be the soda.

On top of that, trademark protects against the use in commerce of the mark by another. Referring to Blue Cross doctors in a study is not using the term in commerce. This is so even if the study is being sold.

The reason is that the 'use in commerce' requirement is a use wherein the trademark is being used to identify a good or service being offered for sale. In the study example provided here, Blue Cross is not being used to identify a good or service being offered for sale, but rather it is being used to identify doctors that are part of the Blue Cross network.

I've touched on various aspects of trademark law on my blog through various posts in the Trademark tag here:
http://www.lextechnologiae.com/tag/trademark-2/

Or the Trademark category here:
http://www.lextechnologiae.com/category/trademark/
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The Devil's Coachman (profile), 27 Jul 2011 @ 1:41pm

Coca Cola? WTF? WTF? WTF?
I cannot believe all the stupid banter about a soft drink, when the real issue here is the pieces of monkey shit known as Blue Cross are trying to squelch free speech and reporting of something critical of them because the report mentions their trademarked name. If someone wrote an article about IBM executives in Brazil being arrested for bribery, do you mean to tell us that they can't mention the trademark IBM? How stupid can that be? Pretty goddamn stupid! What a bunch of stupid turds run Blue Cross these days. They must be pretty desperate to avoid even more damning studies in the future.
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Mike Masnick (profile), 27 Jul 2011 @ 2:01pm

Re:
"tardemark"
I've never seen such an appropriate typo in a while.

Now I feel like I have to leave it in place.
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fb39ca4 (profile), 27 Jul 2011 @ 3:49pm

Kind of like drug company studies...
To approve a drug, a company needs to show two positive studies to the FDA. So what ends up happening is they do tens of studies with most of them showing the drug is useless due to the placebo effect, hoping for two that show the drug actually works, usually by skewing results or a statistical fluke. Then, they try to hide all those other studies...
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Anonymous Coward, 27 Jul 2011 @ 8:36pm

Re: Re: Re: Re: Re: Re:
And just under hell you will find where politicians are made.
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Anonymous Coward, 2 Aug 2011 @ 4:25pm

You'll find Blue Cross's website at http://www.bcbs.com. There, you'll find a press release dated July 2011 announcing the appointment of Dr. Greg Paulson as Executive Director Of Quality Innovations. Though you won't find Dr. Paulson's email address, you will have access to the email of their PR spokesman, Brett Lieberman. Why not let him know your opinion of BCBS's inappropriate bullying of consumer-based research and the health insurance giant's values concerning the quality of care of their subscribers? imho, BCBS executives have clearly demonstrated a preference of maintaining positive branding than with the clinical quality of service their delivered to their subscribers by their network physicians. Their obfuscation claiming "trademark violations" shows their ignorance and contempt of IP law, as well as a distorted corporate value system. BCBS needs our feedback, as do all purported service organizations that do not place customer service at the top of their corporate value system. Shame on BCBS leadership, as corporate executives trusted with the health and well-being of their customers, and as human beings. The name Blue Cross once was a symbol of pride in the US healthcare system. Today, it's another ship of greedy fools, sailing without benefit of a moral compass.
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Blue, 30 Oct 2013 @ 6:37pm

The President of Coca Cola makes a phone call to Russian President Vladimir Putin:
- Vladimir, I have noticed that you have changed Russian anthem, do you have any plans to change the flag as well - return to the previous purely red flag? If you would
put our Coca-Cola trademark in a corner, we would solve all your problems with pensions, salaries of officials for couple years ahead...
Vladimir puts the call on hold and asks his colleague:
- Hey, when does our contract with Aqua Fresh end?
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