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Children's Medical Group Inc. v. Lake Country Pediatrics S.C.

United States District Court, E.D. Wisconsin

October 22, 2019

CHILDREN'S MEDICAL GROUP, INC., Plaintiff,
v.
LAKE COUNTY PEDIATRICS, S.C., Defendant.

          ORDER

          LYNN ADELMAN DISTRICT JUDGE

         Plaintiff Children's Medical Group, Inc., d/b/a “Children's Hospital of Wisconsin” (“CHW”), brought this action seeking a declaratory judgment that CHW's use of the phrase “Delafield Pediatrics” to identify its primary care practice in Delafield, Wisconsin, does not constitute trademark infringement or unfair competition under the Lanham Act or Wisconsin common law. Defendant Lake Country Pediatrics (LCP) filed a counterclaim alleging claims for false designation of origin in violation of Section 43(a) of the Lanham Act, common law unfair competition and common law trademark infringement. The action is before me on the parties' cross motions for summary judgment.

         I. BACKGROUND

         In July 1998, Dr. Mark Kamsler established Delafield Pediatrics, S.C., a pediatric medical clinic located in Delafield, Wisconsin. ECF # 134, ¶ 81. The clinic offered its patients an “integrated approach to health care, ” including “the use where appropriate of supplements, herbals, tinctures, teas, essential oils, massage, probiotics and educational services, ” and a “willingness to work with patients who had concerns about vaccines.” ECF # 129-1, ¶¶ 27-30. The clinic's integrated approach to pediatric health care attracted patients from across the State of Wisconsin, and from Illinois. Id., ¶ 30. The clinic used the name Delafield Pediatrics to identify itself in the phone directory, on medical forms, and on letterhead. Id., ¶ 21. Kamsler also relied on word of mouth advertising to promote the Delafield Pediatrics Clinic. Id., ¶ 24-25.

         In 2010, Dr. Kamsler sold the practice to LCP. Dr. Gregory Moyer had founded LCP in 1997 in Oconomowoc, Wisconsin, which is close to Delafield, and continued to operate a clinic there. Id., ¶ 38. The asset purchase agreement specified that Moyer and Kamsler intended that rights to the name Delafield Pediatrics would transfer to LCP as part of the purchase; the parties dispute whether Kamsler in fact owned any such rights and whether the asset purchase agreement constituted valid transfer. After the purchase, LCP continued to offer integrative health care services at the same location in Delafield previously used by Dr. Kamsler and Delafield Pediatrics. Id., ¶ 51. In December 2010, LCP announced its purchase of the Delafield Pediatrics medical practice in an advertisement published in a local parenting magazine. Id., ¶ 49. LCP also sent a letter to all patients of Delafield Pediatrics advising them of the purchase and of Dr. Kamsler's ongoing availability as a physician associated with LCP. Id., ¶ 51. Many patients of Dr. Kamsler and Delafield Pediatrics remained patients of the clinic after it was purchased by LCP. Id., ¶ 52.

         The parties dispute the extent to which LCP used the phrase “Delafield Pediatrics” to identify or advertise the Delafield clinic following the purchase. LCP contends that it continued to use the phrase “Delafield Pediatrics” to describe the clinic, but provides little evidence for that assertion. The sign outside the building reads “Lake Country Pediatrics, ” not “Delafield Pediatrics”; LCP contends that this is because it already owned the Lake Country Pediatrics sign and it would be too expensive to purchase a new sign. ECF # 91, ¶ 45. LCP also acknowledges that newspaper ads it published after the purchase did not use the phrase “Delafield Pediatrics, ” but rather referred to the clinic as LCP's “Delafield Location, ” comparable to its “Oconomowoc Location.” Id., ¶ 48. In his deposition, Dr. Moyer stated that “Delafield Pediatrics didn't advertise much at all until Children's came into the picture” in 2014, and that before that time word of mouth had been its primary mechanism for advertising. ECF # 127-16 at *32-33. CHW has submitted as exhibits many examples of LCP print ads that provide contact and address information for the Delafield location without using the phrase “Delafield Pediatrics.” LCP has also submitted some examples of print ads that do contain the phrase “Delafield Pediatrics, ” but does not specify the date of publication of these ads. ECF # 91-3. As for online advertising, an employee of LCP's marketing and advertising agency testified that she first created a “Delafield Pediatrics” page for the LCP website in 2017; before then, the website had referred only to a “Delafield Location” and an “Oconomowoc Location”. ECF # 127-49 at *22. LCP's “Delafield Pediatrics” Facebook page was also created in 2017. ECF # 127-35. LCP contends that its employees continued to answer the phone using the phrase “Delafield Pediatrics” and it is undisputed that the phrase “Delafield Pediatrics” was used in word-of-mouth advertising.

         CHW is a large provider of pediatric medical services comprising two hospitals and several clinics, including primary care clinics, located throughout southeastern Wisconsin. Many (though not all) of its primary care clinics have names that pair the word “pediatrics” with the name of the community or neighborhood in which the clinic is located. For example, CHW operates Oak Creek Pediatrics in the city of Oak Creek, Kenosha Pediatrics in the city of Kenosha, and North Shore Pediatrics in the North Shore suburbs of Milwaukee.

         In 2014, CHW began construction of a new clinic in Delafield. ECF# 129-1, ¶ 78. Since the clinic opened, the outside signage has stated “Children's Hospital of Wisconsin Delafield Clinic.” Id., ¶ 80. However, CHW also uses the name “Delafield Pediatrics” in marketing the services offered at the facility. The parties dispute the nature of this use: LCP claims that the name “Delafield Pediatrics” is used to market all services at the clinic, whereas CHW claims that the name is used only to describe and promote the primary care office located within the clinic, which also contains several offices that offer various sorts of pediatric specialty care. Id., ¶¶ 86-87.

         In the spring of 2017, Dr. Moyer contacted CHW regarding CHW's use of the name Delafield Pediatrics; the parties dispute the nature of the communications that ensued, but they concluded with the filing of this lawsuit.

         II. LEGAL STANDARDS

         a. Summary Judgment

         Summary judgment is required where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, I view the evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).

         When the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Evidence relied upon must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248.

         b. Trademark Infringement ...


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