March 12, 2004

Emory Files Lawsuit Against LASIK Eye Doctors

Atlanta Business Chronicle
Vol. 26, No. 40; Pg. A8; ISSN: 01648071

It was late February and Emory University officials didn't like what they saw.  A group of eye doctors who had severed ties with Emory had launched an advertising campaign promoting their LASIK eye surgery practice under a new name, InView.  The marketing blitz included messages on billboards, mailings, and on television, radio and the Internet describing InView as "formerly Emory Vision."

"New Name, Same Quality," one Internet pop-up read. "That's it. Nothing else is changing."

On March 4, Emory University filed a federal lawsuit in U.S. District Court in Atlanta against InView and its founders, Keith P. Thompson and George O. Waring, for trademark infringement. Emory lawyers said the references are deceptive because the doctors are no longer faculty at Emory medical school. They will ask U.S. District Court Judge Jack T. Camp for a cease-and-desist order at a hearing on March 12.

The university also plans to open its own LASIK eye surgery practice in upcoming weeks, bringing into focus the fierce competition for dollars and patient loyalty at stake in Atlanta's eye surgery business. Industry consultants said there are 20 laser eye surgery offices in metro Atlanta where people spent more than $34 million on the procedure in 2003.

Problems between Emory and the eye doctors began last fall.  The university had licensed its name to three Emory opthamologists, allowing them to use the name for five years in exchange for 1 percent of profit or $250,000 in royalties, whichever was more. In August when the doctors failed to pay royalty fees, Emory threatened to terminate the contract.

According to court records, the university ultimately agreed to allow the doctors to use Emory's name through February.

Before the contract expired, the doctors launched their advertising campaign. Billboards touted InView doctors' experience in LASIK eye surgery, noting that they were "formerly Emory Vision." Direct mailings promoted InView's "New Name, Same Incredible Credentials."

One promotion, modeled after an eye chart, said "Emory Vision has changed its name." Emory's name appeared in the largest letters at the top of the chart and news of the change appeared in increasingly tiny letters near the bottom.

Emory lawyer Joseph Beck declined to comment for this story.  But in the lawsuit, Emory characterized the clinic's use of the domain to fink customers to the new Web site as an attempt to mislead customers into thinking that nothing changed at the clinic other than its name.

"Something has changed," lawyers wrote in the lawsuit.  "The Emory-affiliated refractive eye surgery center is no longer in operation. Doctors Thompson and Waring are no longer the 'surgeons of Emory Vision.' And they no longer have any authority to speak about what is occurring 'at Emory Vision.' "

InView released a statement saying that they made references to Emory Vision to avoid confusion and communicate their former name during the transition.

"We are not and have never intended to inappropriately use the Emory name or mark.  We felt it was necessary to allow our 40,000 patients the opportunity to find us [and] access our services for any follow-up care."

InView has the same staff with the exception of one surgeon, the statement said.

Thompson and Waring founded the clinic in 1994 with a third doctor, R. Doyle Stulting.  All three were on the Emory medical school faculty and at the forefront of the LASIK technology business, a surgery that corrects nearsightedness by reshaping the cornea.  In 1995, the clinic was the site of one of the first Food and Drug Administration clinical trials of the LASIK procedure.

According to the lawsuit, Stulting will remain on the Emory medical school faculty and has ended his professional relationship with InVision to lead a new LASIK eye surgery center operated by Emory. That clinic will open in early April, according to court records.

In the meantime, Emory's lawsuit contends InView's founders owe Emory hundreds of thousands of dollars in royalties.

Such lawsuits are far more common in the fast-food and convenience store/gas station industry, said George Washington University law school professor Roger E. Schechter, who specializes in intellectual property law.

"Generally speaking, cases like this settle and don't go all the way to the mat as a knockdown drag-out fight because everyone wants to get down to the business of fixing people's nearsightedness," he said.

And that's a competitive business.

David Harmon, president of Market Scope, a market research consulting company specializing in opthamology, said doctors affiliated with a university will commonly leave to start their own more lucrative business, he said.  More than 20 laser eye firms in Atlanta compete for the business of about 11,000 metro Atlantans, he said.  Universities find the advertising warfare around LASIK "distasteful" and shy away from it.

"Universities don't like the use of their name promoting something like LASIK," he said.

"Yet, if you're going to be competitive in this business, you have to do that."

Posted by Admin at March 12, 2004 04:12 PM