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Claim game: Michigan court's ruling bears message for cosmetic surgery marketing

Article-Claim game: Michigan court's ruling bears message for cosmetic surgery marketing

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  • Surgeons should carefully formulate their marketing messages, according to one expert

Dr. Segal
DETROIT — A recent court ruling could be interpreted as a cautionary note to cosmetic surgeons who market their services via infomercial or on the Internet: Take great care in formulating your marketing message.

On May 2, a U.S. District Court here dismissed a lawsuit filed by Lifestyle Lift Holdings Inc., a plastic surgery company, against, a Web site that provides a forum in which consumers may post comments regarding products or services that are marketed via infomercials or on Web sites.

In its suit, Lifestyle Lift Holdings Inc. claimed that had violated federal and state trademark laws by using its trademarked name, "Lifestyle Lift," as part of the site's URL Web address and had profited by such use. Lifestyle Lift, based in Troy, Mich., licenses its name to cosmetic surgeons who promote facial cosmetic procedures performed under that brand name across the country.

CYBER GRIPES In a motion to dismiss the case, lawyers claimed the site was exercising free speech, and that the reason Lifestyle Lift's name appeared on the site was because consumers were submitting complaints about procedures performed by physicians affiliated with Lifestyle Lift.

On its Web site, devotes an entire four-page section to consumer complaints about Lifestyle Lift — and it is this section in which the Lifestyle Lift moniker appears in the URL. The section includes more than 60 complaints, dating back to May 2007, submitted by patients who had seen Lifestyle Lift infomercials or been to its Web site, had procedures performed as a result — and were dissatisfied with the results.

"They falsely advertise," writes a patient who had responded to a Lifestyle Lift infomercial and undergone a facial procedure. "I have scars along my ears and thick scarring behind my ears. The skin on my neck near my ears is all discolored now and spotty...I wish I'd never done this, as I am now physically and emotionally scarred."

"My scars are red, very pronounced and I have shooting pains behind my ears," writes another. "My advice: Be very careful when considering having this operation. I wish I had been." lawyers further argued that Lifestyle Lift had come up with a specious trademark claim in order to "harass" the site for giving dissatisfied customers a forum in which to vent their criticisms of the cosmetic surgery company.

FIRST AMENDMENT? "This court should not tolerate this baseless attempt to use litigation to accomplish this improper purpose of suppressing critical commentary," argued lawyers, who were retained by advocacy group Public Citizen.

Indeed, one of the avenues of relief requested by Lifestyle Lift in its suit was that the court shut down "and any other Web site or domain name controlled by [the] defendant containing infringing content."

District Court Judge Arthur J. Tarnow did no such thing. Rather, he dismissed the suit, noting that was exercising free speech, that the URLs did not make Web users believe the site was related to Lifestyle Lift, and that, as a result, there was no violation of trademark law.

"I agree with the court's decision based on trademark law," says Jeffrey Segal, M.D., F.A.C.S., a neurosurgeon who founded and now runs full-time Greensboro, N.C.-based, Medical Justice, a membership organization that helps physicians deter frivolous medical-malpractice lawsuits.

"There's something called 'fair use' in the law, which allows a party to use a trademarked name in an educational sense — including complaints or criticism," Dr. Segal tells Cosmetic Surgery Times. "It's pretty obvious that Lifestyle Lift was looking to take down the [] site, but the law was just not on their side."

Beyond the results of the case for either party, however, Dr. Segal says he feels there's a message for all cosmetic surgeons — and all doctors, for that matter.

DEFENSIVE MARKETING "Many of these consumer sites target your marketing message, so if you market on the Internet or in infomercials, you'd better live up to what you're saying," Dr. Segal counsels. "The more you promise in medicine, the more you risk those promises coming back to bite you.

"I think the take-home message of this case is that doctors should be realistic when it comes to informing potential patients about what can be done for them — and that their marketing message should conform to that realistic, careful approach."

For more information
Jeffrey Segal, M.D., F.A.C.S.
[email protected]

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