–Dan Kelly, Attorney

There has been at least one interesting trademark-related story in the wake of the Rush Limbaugh flap.  Health insurance company Humana Inc. and its subsidiary Concentra Health Services, Inc. sued Preval Group, LLC for an injunction against Preval’s use of CONCENTRA in connection with a “memory pill.”

Humana raised the issue of likely confusion and trademark infringement with Preval by letter in late 2011, but the issue took on greater urgency earlier this month, as Preval advertised its CONCENTRA memory pills during one of Limbaugh’s controversial episodes.  In the resulting backlash against Limbaugh’s advertisers, Humana’s Concentra Health Services, who does not advertise on Limbaugh’s program, received a great deal of negative feedback, particularly via social media and electronic channels, including some pointedly negative comments from referral sources, swearing never to refer clients to Concentra’s services.  As a result, Humana sued Preval on March 7, and the matter settled within two days.  It appears that Preval has rebranded its CONCENTRA memory pills as “IQMIZE.”  (See regainyourmemory.com.)

A significant issue in this case, and one worth considering in many cases of potential infringement, is that concentra.com is Concentra Health Services’ home page.  Preval’s CONCENTRA product page resided at regainyourmemory.com.  People concerned with targeting Limbaugh’s “Concentra” advertiser likely knew one name only:  CONCENTRA.  Between the concentra.com domain name, Internet search results for “concentra,” and the fact that it is not a stretch to consider that a company called Concentra Health Services might be the source of a homeopathic “memory pill,” it is not surprising that Concentra Health ended up in the crosshairs of many folks.  It isn’t right, but it isn’t surprising.

In my opinion, many people assume that a company advertising goods or services under a particular mark likely owns an obvious domain name that incorporates the mark.  Trademark law permits Delta airlines, Delta faucets, and Delta power tools to coexist because there is little to no overlap or association amongst the three companies’ goods and services, but there is only one delta.com.  While this does not mean that companies should be entitled to broader protections for simply owning a desirable domain name, it does suggest that brand owners should pay close attention to potentially infringing marks that are identical to (or phonetically identical to) domain names owned by the company.  If another company hits the press in a bad way (think boycotts, recalls, investigations, etc.), will it end up at your company’s front door?

Cases of serious negative confusion, like the CONCENTRA case, are relatively rare, but it is a fact pattern worth considering when evaluating potential infringement.