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[thetroof]

Medical technique question
« on: Today at 12:57pm »  Quote  Modify  Remove  

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I have what I think is a unique situation.  I'm sure we all do.

There is a medical treatment technique that has been used in the US for 20 years.  It utilizes a brace that is applied to certain parts of the body.  It is both a product, and a technique, as this brace is applied a certain way.  

Both were developed by company X.  Company X has federally registered the names "Musculostrap" and "Musculostrapping"

Company X has sold this brace, and has sold manuals on how to apply this brace for 20 or so years.  They offer a certification course on how to apply this brace, and this course is offered by individuals that they certify. One must pay 1500 to attend this "certification instructor course"  

Other education companies, in addition to company X employ these certfied instructors to teach classes to medical professionals on the  application of the brace and the treatment methods.  All that was required was that the companies turn in a course agenda to company X.  Purchasing of company manuals and braces was not mandatory.

They have after 20 years, changed their model and want bigger input into how their product and method are disseminated.  Now, in order to hold a certification course,  Company X is requesting that education companies purchase materials from them at the cost of 250 per person.   So essentially, they are going from charging nothing to 250 per person.  Cost of the courses will have to rise significantly.

I invested money in sending a medical professional to the cerfification course so that my company could teach this technique around the US.  He is certified to teach their technique.

I don't have a desire to teach their certification course any longer, as it is will be too expensive.  

My question is, can I use the company X's names..ie  
"Musculostrapping"(trademarked) and "Musculostrap"in my advertising? and teach a non certification course?  My own?

Ie..."Principles of Musculostrapping"

I am not claiming to be them.  
I have an instructor that they certified (I paid for it, they made mone off of it).
My class is teaching their method in the same way that other have before.

Thanks in advance,

[Isaac]

I'd recommend checking out the scope of your old agreement with the company.   There could be an argument that you are using the trademark in a nominative fashion, but IMO the argument appears weak, and in any event, the potential for going beyond a nominative use or for being sued in a borderline case seems fairly high.

If there is a generic name for the involved technique, you might consider using that.

I've assumed that trademark protection and false association are what you have to worry about.  It is possible that you are bound contracturally.   I'm guessing that there is no patent involved.

[thetroof]

Thanks for your reply Isaac.

I have never had a contract with them.  
There is no patent that I am aware of.

I have thought about the generic use angle, and may be valid.  They consistently use nouns and verbs in their advertising literature when describing their method and product, and I've read where that can be significant.

In your opinion, what if I titled my seminar this:

"Basic use of Musculo Strap Tape" by Joe Pierre, Certified Musculo Strapping Instructor"

In my opinion I am merely stating fact in this seminar title.  It would be like my teaching "Basic use of Microsoft Windows" or "Basic use of Microsoft X box".

Thanks in advance for your reply

[thetroof]

Thanks for your reply Isaac.

I have never had a contract with them.  
There is no patent that I am aware of.

I have thought about the generic use angle, and may be valid.  They consistently use nouns and verbs in their advertising literature when describing their products, and I've read where that can be significant.

In your opinion, what if I titled my seminar this:

"Basic use of Musculo Strap Tape" by Joe Pierre, Certified Musculo Strapping Instructor"

In my opinion I am merely stating fact in this seminar title.  It would be like my teaching "Basic use of Microsoft Windows" or "Basic use of Microsoft X box".

Thanks in advance for your reply

[Isaac]

What I meant by generic was using the technical term for the procedure rather than the trademark.

I'd recommend getting some advice based on your anticipated use of the real mark.  The line between nominative use and a use that trades on the mark holder's goodwill can be a fine line.