4. Monitoring Mobile Appsand Other Media The Internet has changed the playing field for trademark

4. Monitoring Mobile Appsand Other Media
The Internet has changed the playing field for trademark owners to monitor their marks. Now, the increasing popularity of mobile applications (apps) for smart phones has shifted the playing field once again and medical device companies need to carefully monitor this evolving area. Millions of consumers with mobile phones and tablets have made the mobile app market the next big thing for a variety of businesses, but this also has created additional problems for trademark owners. Consumers download mobile and Internet apps for social networking, gaming, travel, weather and, most recently, to track and monitor their health. Copyrighted content in mobile apps is most often the biggest concern for companies, but trademark protected company names, product names and logos also frequently are misused in mobile apps, often without the trademark owner’s consent. The rising number of medical mobile apps for diagnosis and treatment compliance has increased the risk of potential copyright infringement and trademark infringement.

Many app developers that incorporate other companies’ trademarks include disclaimers in the description of the apps, typically if the trademark owner is officially affiliated with the apps. However, not all uses of a company’s trademark will be covered by these notices and disclaimers, especially if the company is not an affiliate or has not given permission to include its trademarks. Even when disclaimers are included, they are unlikely to remedy all likelihood of confusion issues, as consumers who download apps may not see the disclaimers.

Another area of concern regarding mobile apps, beyond the potential for trademark infringement, is the growing prevalence of Internet hacking, data theft, and counterfeit software. Unauthorized or illegitimate mobile application versions (i.e., counterfeit software posing as valid apps) may be offered on platforms where they should not exist or even be on the same platform as valid apps, and these apps may contain viruses that infect user electronic devices and stored content and even present HIPAA (Health Insurance Portability and Accountability Act) privacy concerns. If a consumer downloads an app it believes is from a well-known and trusted company, and in turn, the consumer is a victim of hacking, data theft or merely receiving an inferior product, the goodwill of the brand can be tainted. Monitoring mobile app stores is a good way to identify trademark infringement and dilution for medical device companies that provide health software.

Companies also should monitor trademark misuse by the media and consumer publications. If a publication uses a company’s trademark inappropriately, whether generically or without the proper identification of the TM or ® symbol, the company should consider sending a letter to the publisher advising of its trademark rights and requesting the trademark misuse be corrected. It is important to include monitoring of mobile app stores, app content, and media use of its trademarks as part of its trademark policing strategy.