CHARLESTON – Owners of Genesis Healthcare nursing homes want to stop seeing their trademark and logo on the Web site of attorneys who sue nursing homes.
Genesis has asked U. S. District Judge Joseph Goodwin to order McHugh Fuller Law Group of Hattiesburg, Miss., to remove the trademarks from the firm's Web site.
Genesis attorney Rochelle Brightwell of Weirton claims McHugh Fuller, which also has an office in Charleston, unlawfully misappropriated the trademark and logo for commercial gain.
She alleges unfair competition.
"Plaintiff and Defendant are competing for the same customers," she wrote to Goodwin. "A patient who commences an action through Defendant is not likely to remain Genesis's customer."
For McHugh Fuller, Jamison Cropp of Bridgeton responded that, "McHugh Fuller and the Plaintiff are not competitors. The parties offer completely different services."
Genesis sued the firm Aug. 3. Brightwell wrote that readers of a Genesis Web site found a link to genesisconcerns.com, a domain of McHugh Fuller.
She attached a printout from genesisconcerns.com, with the Genesis name and logo at the top.
It said nursing homes violate rights of residents. It said nursing home abuse is a serious problem. It said potential for neglect grows because homes are frequently understaffed.
The last paragraph advises readers to call immediately if they have seen weight loss, dehydration, bed sores, broken bones and unexplained injuries.
Brightwell asserted trademark claims. She also accused McHugh Fuller of defamation.
Goodwin denied the injunction Aug. 23, ruling that Genesis produced no evidence to justify an injunction. He gave Brightwell five days to rewrite her complaint.
She filed a new complaint alleging trademark infringement and dilution, false advertising and unfair competition. She dropped the defamation claim.
She wrote that Genesis trademarks are famous. She wrote that Genesis operates more than 200 centers in 13 states with 26,000 residents and patients.
"Plaintiff's services have met with great public and trade acceptance," she wrote, adding that McHugh Fuller tried to interfere with Genesis customer contracts and potential contracts.
She wrote that McHugh Fuller intended to deceive and confuse.
"It is highly likely that a large number of reasonably alert persons viewing the McHugh website will, for several moments, after arriving at the Defendant's website, experience genuine confusion over the source of the information," she wrote. "Plaintiff has been injured and will continue to be injured because it has lost and may continue to lose the good will and reputation it has earned through years of service."
She wrote that an injunction would not put McHugh Fuller out of business or harm it in any manner.
She wrote that the public has a right to make decisions "upon accurate information and not upon the inflammatory marketing techniques of a personal injury law firm."
Cropp responded Sept. 5, telling Goodwin no likelihood of confusion existed. He wrote that the Genesis marks were not famous.
He wrote that Genesis could not show a bad faith intent to profit from use of the genesisconcerns domain.
He called the complaint censorship, arguing that it trampled on McHugh Fuller's rights of comment and criticism.
"The public interest would be greatly disserved by preventing McHugh Fuller from informing the public about the results of state and federal inspections of Plaintiff's facilities," he wrote.
He wrote that the injunction would bar any reference by McHugh Fuller to Genesis.
"Defendant could conceivably not even communicate with its current clients who are in litigation with Plaintiff," he wrote. "Applied literally, Defendant's attorneys could not deliver closing statements in a trial against Plaintiff."
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