Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA867377
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`Filing date:
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`12/26/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91222449
`
`Party
`
`Correspondence
`Address
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`Submission
`
`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Plaintiff
`Epic Systems Corporation
`
`ANTHONY A TOMASELLI
`QUARLES & BRADY LLP
`33 EAST MAIN ST, STE 900
`MADISON, WI 53703
`UNITED STATES
`Email: aat@quarles.com, martha.snyder@quarles.com, an-
`ita.boor@quarles.com, meme.hilley@quarles.com, ms7@quarles.com,
`louis.klapp@quarles.com
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`Other Motions/Papers
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`Martha Jahn Snyder
`
`martha.snyder@quarles.com, anthony.tomaselli@quarles.com, an-
`ita.boor@quarles.com, meme.hilley@quarles.com, louis.klapp@quarles.com
`
`/Martha Jahn Snyder/
`
`12/26/2017
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`2017.12.26 Notice re. Civil Action.pdf(93638 bytes )
`2017.12.26 Notice - EXHIIBIT A.PDF(418020 bytes )
`2017.12.26 Notice - EXHIBIT B.PDF(222834 bytes )
`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
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`
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`EPIC SYSTEMS CORPORATION,
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`
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`
`
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`Opposer,
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`
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`
`
`
`
`v.
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`
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`
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`
`
`YOURCAREUNIVERSE, INC.,
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`
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`
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`Applicant.
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`)
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`)
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`Opposition No.: 91222449
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`Mark: YOURCAREEVERYWHERE
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`Appl. No.: 86/505,953
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`
`JOINT NOTICE REGARDING DISPOSITION OF CIVIL ACTION
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`
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`Applicant YourCareUniverse, Inc. (“YCU”) and Opposer Epic Systems Corp. (“Epic”)
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`hereby notify the Trademark Trial and Appeal Board (the “Board”) of the final disposition of the
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`civil action between the Parties. See Epic Sys. Corp. v. YourCareUniverse, Inc., No. 3-15-CV-
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`00821 (W.D. Wis. 2017). Attached as Exhibit A is a copy of the Court’s March 22, 2017, order
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`granting YCU and the other defendants a summary judgment against Epic’s claims. Attached as
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`Exhibit B is a copy of the Court’s November 2, 2017, order denying Epic’s motion to alter or
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`amend the judgment. The time to appeal expired on December 4, 2017. The Court’s judgment is
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`therefore final.
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`In light of that disposition, Epic hereby withdraws its opposition to Application Serial
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`No. 86/505,953 as amended by YCU on May 7, 2015 to limit to the following goods and
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`services:
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`Providing non-downloadable computer software through a web based portal for
`consumers to access medical, healthcare and health enhancement information and
`educational resources, including electronic publications, information on chronic
`diseases, health news, articles about health and wellness, medical reference
`
`

`

`material, consumer-driven query capability for symptom checkup, pharmacy
`information, medical news, and interactive tools for helping patients manage their
`health.
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`YCU hereby requests that the Board dismiss this opposition proceeding and, subject to an
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`appropriate declaration of use, allow registration of the YOURCAREEVERYWHERE mark, as
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`amended by YCU on May 7, 2015, on the principal federal trademark register.
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`
`
`Dated: December 26, 2016
`
`
`/Angela Holt/
`Angela Holt
`aholt@babc.com
`David W. Holt
`dholt@babc.com
`BRADLEY ARANT BOULT CUMMINGS LLP
`200 Clinton Avenue, Suite 900
`Huntsville, Alabama 35801
`Phone: (256) 517-5100
`Fax: (256) 517-5200
`
`Counsel for Applicant,
`YOURCAREUNIVERSE, Inc.
`
`
`
`
`
`
`Respectfully submitted,
`
`/Martha Jahn Snyder/
`Anthony A. Tomaselli
`aat@quarles.com
`Martha Jahn Snyder
`martha.snyder@quarles.com
`Anita Marie Boor
`anita.boor@quarles.com
`QUARLES & BRADY LLP
`33 East Main Street, Suite 900
`Madison, WI 53703
`Phone: 608-251-5000
`Fax: 608-251-9166
`
`Louis A. Klapp
`louis.klapp@quarles.com
`QUARLES & BRADY LLP
`300 North LaSalle Street, Suite 4000
`Chicago, IL 60654
`Phone: 312-715-5000
`Fax: 312-715-5155
`
`Attorneys for Opposer Epic Systems
`Corporation
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`2
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 26, 2017, I caused the foregoing to be served by
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`electronic mail on counsel of record in the referenced proceeding.
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`
`
`
`By: /Martha Jahn Snyder/
`One of the Attorneys for Opposer
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`3
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`

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`EXHIBIT A
`EXHIBIT A
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`

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`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 1 of 46
`
` IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
`
`EPIC SYSTEMS CORPORATION,
`
`
`Plaintiff,
`
`v.
`
`
`YOURCAREUNIVERSE, INC., MEDHOST OF
`TENNESSEE, INC., and MEDHOST DIRECT, INC.,
`
`
`Defendants.
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`OPINION & ORDER
`
`15-cv-821-jdp
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`
`
`
`
`
`
`Plaintiff Epic Systems Corporation is suing defendants YourCareUniverse, Inc.,
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`MEDHOST of Tennessee, Inc., and MEDHOST Direct, Inc. under both state and federal law
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`on the grounds that defendants’ YOURCAREEVERYWHERE mark infringes Epic’s
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`trademark for CARE EVERYWHERE and results in unfair competition. Defendants have
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`moved for summary judgment, Dkt. 113, arguing that no reasonable jury could find that
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`their mark is likely to confuse potential customers, which is an element of all of Epic’s claims.
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`In the alternative, defendants seek summary judgment on Epic’s request under 15 U.S.C. §
`
`1117(a) for attorney fees and enhanced damages.
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`The primary fact in Epic’s favor is that both marks include the same words. But nearly
`
`all the other factors governing a likelihood of confusion analysis favor defendants or are
`
`neutral. Although Epic and MEDHOST offer some of the same products, the marked
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`products (an “interoperability” application and a health and wellness website) are very
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`different. There is no evidence that anyone has been confused by defendants’ mark and there
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`is strong evidence that defendants did not
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`intend to copy Epic’s mark or use
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`YOURCAREEVERYWHERE to deceive potential customers. Several other factors favor
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`defendants as well: the marks use commonplace words; the context of defendants’ mark
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`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 2 of 46
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`generally makes its source clear; prospective customers generally use a great deal of care in
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`choosing the relevant products and services; and the parties have little overlap in their
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`customers. Even if it is assumed that potential customers associate CARE EVERYWHERE
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`with Epic’s product, the possibility of customer confusion is simply too remote and
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`speculative to require a trial. Accordingly, the court will grant defendants motion for
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`summary judgment, which makes it unnecessary to consider defendants’ alternative argument
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`regarding Epic’s request for relief under § 1117(a).
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`Several other motions are before the court as well: (1) defendants’ motion to exclude
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`the testimony of one of Epic’s experts, Michael Cohen, Dkt. 118; (2) defendants’ motion to
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`strike Epic’s jury demand, Dkt. 120; (3) Epic’s motion to amend its damages report,
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`Dkt. 194; and (4) defendants’ motion for leave to amend their answer to assert the
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`affirmative defense of abandonment, Dkt. 202; (5) defendants’ motion to compel discovery,
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`Dkt. 224; (6) Epic’s motion for an extension of time to respond to defendants’ motion to
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`compel, Dkt. 226; and (7) Epic’s motion to compel discovery, Dkt. 228.
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`The court will deny all of these motions as moot. Epic did not rely on Cohen’s
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`testimony or opinions in its own proposed findings of fact. Although Epic cited Cohen’s
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`testimony a few times in responses to defendants’ proposed facts, none of that testimony
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`makes any difference to the outcome of defendants’ summary judgment motion. The
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`remaining motions have no bearing on summary judgment, so it is unnecessary to consider
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`them.
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`
`
`2
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`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 3 of 46
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`UNDISPUTED FACTS
`
`The undisputed facts are taken from the parties’ proposed findings of fact and the
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`record. The court has disregarded proposed facts that did not comply with the court’s
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`procedures. For example, when responding to the other side’s proposed findings of fact, the
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`parties often included additional facts that were not responsive to the original fact.1 Dkt. 45,
`
`at 14 (“When a responding party disputes a proposed finding of fact, the response must be
`
`limited to those facts necessary to raise a dispute. The court will disregard any new facts that
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`are not directly responsive to the proposed fact.”). The court also excluded vague or
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`conclusory proposed facts and responses that did not comply with the requirement to provide
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`“specific facts” at summary judgment.2 Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887
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`(7th Cir. 1998) (“Rule 56 demands something more specific than the bald assertion of the
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`general truth of a particular matter[;] rather it requires affidavits that cite specific concrete
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`facts establishing the existence of the truth of the matter asserted.@).
`
`
`1 E.g., Dkt. 170, ¶ 23, (disputing fact about programs that CARE EVERYWHERE application
`is used “in connection with” on ground that CARE EVERYWHERE mark is not used on
`those programs); Dkt. 169, ¶ 82 (not disputing fact but adding more information); id., ¶ 146,
`(disputing fact about products that include the YOURCAREEVERYWHERE mark with
`information regarding how defendants use mark for marketing); id., ¶ 152 (disputing fact
`about registering an account on defendants’ website with information about how defendants
`“promote[] and sell[]” their products and services); id., ¶ 162 (disputing fact about how
`products function with information about how products are marketed); id., ¶ 195 (disputing
`fact about Epic’s direct customers with information about customers who license Epic’s
`products from direct customers).
`
`2 E.g., Dkt. 170, ¶ 18 (“All Epic’s applications and modules are important for Epic’s
`customers to meet their patient care and patient engagement objectives.”); id., ¶ 28 (“Epic . . .
`facilitates a network of providers participating in a health information exchange.”); id., ¶ 69
`(“MEDHOST addressed the rising consumerism in the marketplace through marketing and
`sale
`of
`the
`YourCareUniverse
`products
`and
`services.”);
`id.,
`¶
`79
`(“YOURCAREEVERYWHERE provides ‘front door’ access to the MEDHOST provider’s
`patient portal.”); id., ¶ 91 (“Epic . . . has developed substantial good will in its CARE
`EVERYWHERE mark.”).
`
`
`
`3
`
`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 4 of 46
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`A. Epic Systems Corporation
`
`1. General background
`
`Plaintiff Epic Systems Corporation is a healthcare information technology vendor with
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`about 10,000 employees. Epic’s primary product is “EpicCare,” an electronic health records
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`(EHR) system. Epic provides one version of its system to hospitals and another version to
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`clinics.
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`Among other things, an EHR system such as EpicCare may include medical
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`information about a patient, allow access to evidence-based tools that healthcare providers
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`can use to make decisions about a patient’s care, and automate and streamline scheduling
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`and billing. One purpose of an EHR system is to allow providers across more than one
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`healthcare organization to share and exchange patient information. This sharing of digitized
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`records across providers is sometimes called “interoperability.”
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`2. CARE EVERYWHERE
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`CARE EVERYWHERE is Epic’s interoperability “application” used to exchange
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`patient data between and among healthcare institutions.3 It allows patient data to be
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`exchanged between various end points, which include Epic facilities, non-Epic facilities,
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`personal health records, health information exchanges, and various governmental entities.
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`In May 2004, Epic applied for federal registration of CARE EVERYWHERE. In June
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`2005, the United States Patent and Trademark Office registered the mark. In June 2011, the
`
`
`3 The parties use terms inconsistently to describe the software at issue in this case. For
`example, they seem to use “platform” and “application” interchangeably. E.g., Dkt. 170, ¶ 20,
`(“CARE EVERYWHERE is Epic’s interoperability application . . .”); id., ¶ 23 (“CARE
`EVERYWHERE’s interoperability platform also supports . . .”).
`
`
`
`4
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`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 5 of 46
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`USPTO accepted Epic’s Section 8 and 15 application, rendering Epic’s mark “incontestable.”
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`Epic has not registered CARE EVERYWHERE in Wisconsin.
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`From 2009 to 2014, Epic also used CARE EPIC and CARE ELSEWHERE in
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`conjunction with CARE EVERYWHERE. Epic stopped using these other two marks because
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`some had expressed confusion about the three marks. Some people referred to one or more of
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`the marks incorrectly as “Care Anywhere” and others simply had difficulty remembering the
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`CARE EVERYWHERE name.
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`The purpose of CARE EVERYWHERE is to “help traveling patients get care
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`regardless of where they are.” Dkt. 169, ¶ 28. The name “Care Everywhere” is meant to
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`evoke “something to both patients and providers, which is anywhere you get your care, there
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`can be [a] composite record of all of that care in one place. So anywhere you go, we can pull
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`information from CARE EVERYWHERE.” Id., ¶ 29.
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`CARE EVERYWHERE is part of EpicCare, which hospitals and clinics must license to
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`have access to CARE EVERYWHERE. Along the same lines, a healthcare provider cannot
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`gain access to CARE EVERYWHERE unless he or she works at a facility that has a license to
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`use EpicCare. A provider using an EHR system other than Epic’s must gain access to CARE
`
`EVERYWHERE through another Epic product. Epic uses the CARE EVERYWHERE mark in
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`the context of training, installation, implementation, and maintenance related to the
`
`interoperability application.
`
`3. Other Epic products used with CARE EVERYWHERE
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`CARE EVERYWHERE’s interoperability application may be used “in connection
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`with” individual modules that are also part of EpicCare, including a personal health record
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`management tool, clinical and administrative modules used by healthcare professionals, and a
`
`
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`5
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`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 6 of 46
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`population health management system. Dkt. 170, ¶ 23. One of the modules is an application
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`called MyChart, which is a “shared patient record” or “patient portal.” MyChart “offers
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`patients personalized and secure online access to portions of their medical records and
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`permits patients to
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`include and share with providers disease/health and wellness
`
`information.” Dkt. 170, ¶ 32. MyChart permits patients to review their test results and visit
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`summaries, schedule appointments, download records, and communicate directly with their
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`physicians. MyChart is available only to patients of healthcare providers who are affiliated
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`with Epic. Within the past three years, CARE EVERYWHERE “functionality” was added to
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`MyChart. This allows for the exchange of records with a different provider. A patient may see
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`the CARE EVERYWHERE logo in MyChart when using this functionality.
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`Another module is called “Lucy,” which allows patients to collect their records in one
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`place. CARE EVERYWHERE allows patients using Lucy to transfer records to different
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`providers or to a MyChart account.
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`4. Customer use of CARE EVERYWHERE
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`Epic allows its customers to use its marks on their consent forms and websites so long
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`as they properly attribute the mark to Epic and otherwise use the mark appropriately. Out of
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`18 customers for which Epic provided defendants relevant documents, seven of those
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`customers had used CARE EVERYWHERE incorrectly, either not attributing the mark to
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`Epic or attributing the mark to the wrong products and services.4 Epic relies on its employees
`
`to detect and correct customer noncompliance.
`
`
`4 In its reply materials, defendants identified additional instances of Epic’s customers
`allegedly using CARE EVERYWHERE incorrectly, Dkt. 169, ¶ 101, but the court has not
`included these because Epic has not had any opportunity to respond.
`
`
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`6
`
`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 7 of 46
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`5. Direct customers
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`Epic has approximately 400 customers that obtain a license directly through Epic. The
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`vast majority of these customers are large healthcare organizations. Other customers include
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`“community” hospitals, retail clinics, and independent practices. Most of the smaller
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`organizations share patients with Epic’s larger customers. The smallest facility has 100 beds.
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`Epic’s direct customers are “sophisticated” and they put “a lot of care and resources” into
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`choosing an EHR system. Dkt. 96 (Faulkner Dep., at 270); Dkt. 91 (DeVault Dep., at 222).
`
`The sales process often begins with a prospective customer issuing a “request for
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`proposal” to various health IT vendors. After the customer narrows the list of vendors, those
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`on the short list will give product demonstrations. The process for purchasing an EHR system
`
`usually lasts six months to one year. During the sales process, Epic typically interacts with
`
`high level executives and representatives of practitioners. Many of Epic’s potential customers
`
`also use consultants who are familiar with and experienced in the healthcare IT industry and
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`the request-for-proposal process. The chief information officer and other high level executives
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`are involved in the final decision to purchase an EHR system from Epic because of the
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`significant cost of the system, the necessary hardware to implement the system, and the
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`training needed to use the system. The licensing fee can range from $1.5 million for a small
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`customer to $20 million for a large customer. Because CARE EVERYWHERE is included in
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`EpicCare, there is no separate fee for the application.
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`No organization that has purchased Epic’s EHR system has elected to switch to a
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`different vendor later.
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`
`
`7
`
`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 8 of 46
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`6. Community Connect program
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`For approximately 10 years, Epic has had the Community Connect program, which
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`allows smaller hospitals and physician practices to use the Epic EHR System. Typically,
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`Connect participants are small independent practices with one to five providers or small
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`community hospitals with about one to 200 beds. At least 1,500 organizations participate in
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`the Connect program. Under the program, a Connect participant is able to use the Epic
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`software through Epic’s direct customers in the same ways that Epic’s direct customers use
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`the software. Connect participants can receive training and support from Epic.
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`Generally, Connect participants have a contract with one of Epic’s larger customers
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`rather than with Epic itself. However, Epic may receive a financial benefit from Connect
`
`participants because of increased usage by the direct customer. Connect participants are
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`ordinarily geographically near to a direct customer and share patients with that customer.
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`Prospective Connect participants generally hear about Epic through interactions with Epic’s
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`direct customers.
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`7. Epic’s marketing and sales
`
`Epic and its CARE EVERYWHERE products and services are “widely known” in the
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`healthcare marketplace. Dkt. 170, ¶ 46. Prospective customers “often” mention CARE
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`EVERYWHERE as an aspect of the Epic EHR system that they have heard about and are
`
`interested in. Most people in the industry, including prospective customers, already know
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`what CARE EVERYWHERE is when they contact Epic. However, Epic has never conducted
`
`any survey, poll, search, study, or other investigation to determine whether CARE
`
`EVERYWHERE has acquired secondary meaning in the minds of consumers.
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`
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`8
`
`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 9 of 46
`
`
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`Epic does not have a marketing department. It does not buy advertising space or cold
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`call potential customers. Most customers contact Epic first, often because of a
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`recommendation from another customer. Epic promotes its products and services primarily
`
`through word of mouth and the results from rating agencies and trade shows. Epic’s “Events
`
`and Design Team” promotes Epic’s products and services at user group meetings and industry
`
`conferences. Since 2014, Epic has spent approximately $100 million on marketing and
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`promotion of its products.
`
`
`
`Epic does have a sales team. Generally, the team responds to inquiries made from
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`prospective customers rather than the other way around. Initial discussions are held by
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`telephone and then may lead to face-to-face meetings. When Epic meets with a prospective
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`customer, Epic may recommend the Community Connect program if the customer is not the
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`appropriate size or does not have a large IT department.
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`8. Patients’ exposure to CARE EVERYWHERE
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`Epic does not market or sell the CARE EVERYWHERE product or any other product
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`or service to healthcare patients. Patients might see the mark when completing consent forms
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`regarding the sharing of data, when using the MyChart patient portal, or on an Epic
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`customer’s website. When the mark appears on the MyChart portal, it appears along with the
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`CARE EVERYWHERE logo:
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`
`
`
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`9
`
`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 10 of 46
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`B. Defendants YourCareUniverse, Inc., MEDHOST of Tennessee, and MEDHOST
`Direct
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`1. General background
`
`Defendant YourCareUniverse, Inc. is a subsidiary of MEDHOST Solutions Corp.,
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`which is a subsidiary of MEDHOST, Inc. YourCareUniverse “offers a range of software tools
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`and services that assist healthcare providers in managing the business of healthcare.” Dkt.
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`169, ¶ 115.
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`Defendant MEDHOST of Tennessee, Inc. sells an EHR system called Enterprise.
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`Defendant MEDHOST Direct is a subsidiary that provides hosting and managed services
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`both internally to MEDHOST affiliates and externally to customers of MEDHOST. All of
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`these companies are “related or affiliated corporate entities.” Dkt. 160, ¶ 5.
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`2. YOURCAREEVERYWHERE
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`In 2013, defendants began planning for products using different marks beginning with
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`“YourCare.” The first product, launched in February 2014, was a patient portal called
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`YOURCARECOMMUNITY (since renamed YOURCAREHEALTH). This was followed by
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`YOURCARELINK, which is an “interface engine” that allows the transfer of information to a
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`state health reporting agency. By October 2014, YOURCAREEVERYWHERE was the
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`proposed named for a health and wellness website and related services.
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`After learning that yourcareeverywhere.com was an available web domain, defendants
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`conducted a search for similar marks. Defendants discovered Epic’s CARE EVERYWHERE
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`mark at that time.
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`
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`10
`
`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 11 of 46
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`Defendants hired an advertising agency to perform a survey to test the name
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`YOURCAREEVERYWHERE, along with two other names. Sixty five percent of the
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`respondents chose YOURCAREEVERYWHERE as their preferred name.
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`Defendants launched the yourcareeverywhere.com website in March 2015. At the
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`same time, they executed a marketing campaign for the website, spending approximately
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`$2,500,000. When advertising products and services for YOURCAREEVERYWHERE,
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`defendants use the YOURCAREEVERYWHERE mark. In most of the advertisements, the
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`mark appears alongside the YOURCAREUNIVERSE mark, the MEDHOST mark, or other
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`“YourCare” marks.
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`Epic has identified two instances in which the YOURCAREEVERYWHERE mark has
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`appeared without being clearly unaccompanied by one of defendants’ other marks. Dkt. 145-
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`65 and 145-66. (Epic cites two other documents, Dkt. 145-28 and Dkt. 145-29, but either
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`the MEDHOST mark or numerous YOURCAREUNIVERSE marks are prominent.) One is a
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`brochure for YOURCAREEVERYWHERE “engagement services.” (The MEDHOST mark
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`appears at the bottom of the brochure, but it is not prominent.) The other is a press release
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`announcing the YOURCAREEVERYWHERE website. (The YOURCAREUNIVERSE mark
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`appears in the document, but again, it is not prominently displayed.) In both documents, the
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`YOURCAREEVERYWHERE mark appears with a YOURCAREEVERYWHERE logo. Epic
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`has identified three documents (two press releases and a brochure) in which the
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`YOURCAREEVERYWHERE mark did not appear with the logo. Dkt. 169, ¶ 144. In each
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`document without the logo, the MEDHOST mark, the YOURCAREUNIVERSE mark or
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`both are prominent.
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`
`
`11
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`

`

`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 12 of 46
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`In April 2015, the USPTO allowed defendants’ YOURCAREEVERYWHERE mark
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`over Epic’s CARE EVERYWHERE mark.
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`3. Other “YourCare” marks
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`
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`Eventually, defendants chose to brand a number of other products as part of
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`YOURCAREUNIVERSE and identify all of them with a different “YourCare” mark.
`
`Defendants now use many other marks with the “YourCare” prefix, including the following:
`
` YOURCAREANALYTICS
` YOURCARELINK
` YOURCAREREFERRAL
` YOURCARETRANSFER
` YOURCAREHEALTH
` YOURCAREPROVIDER
` YOURCARESUCCESS
` YOURCAREDATA
`
`The Trademark Trial and Appeal Board rejected defendant YourCareUniverse’s
`
` YOURCAREEXCHANGE
` YOURCAREINTERACT
` YOURCARENAVIGATION
` YOURCAREWELLNESS
` YOURCARECOMMUNITY
` YOURCAREKNOWLEDGE
` YOURCAREMESSENGER
` YOURCAREVISUALIZE
`
`application to register “YourCare” on the ground that it is descriptive. The board also
`
`rejected YourCareUniverse’s contention that it owned a “family of marks.”
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`Each of the “YourCare” products and services can be purchased separately and
`
`function independently, both as to each other and as to MEDHOST’s EHR system. For
`
`example, defendants’ YOURCAREEVERYWHERE website can link with any health portal,
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`regardless whether
`
`the
`
`portal
`
`is
`
`affiliated with
`
`defendants. Defendants’
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`YOURCAREHEALTH patient portal can be used without MEDHOST’s EHR system.
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`However, when customers of YourCareUniverse purchase products and services related to
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`YOURCAREEVERYWHERE, they always purchase at least one of defendants’ other
`
`products as well, though they are not required to do so.
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`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 13 of 46
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`4. Products and services associated with YOURCAREEVERYWHERE
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`YOURCAREEVERYWHERE is used on a free, publicly available website that contains
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`general information related to health and wellness, such as diseases and conditions,
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`healthcare news, pregnancy and childbirth, child and teen care, heart care, mental health, and
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`exercise and nutrition. The mark is displayed with this logo:
`
`
`
`There is a YOURCAREEVERYWHERE mobile app as well. On the app, the mark is
`
`displayed with this logo:
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`
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`Users of the website or app may register for an account, which allows them to track
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`certain health and wellness data, such as data from a fitness band.
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`Healthcare providers can license a co-branded landing page that includes the
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`YOURCAREEVERYWHERE mark and logo, along with information from the provider. If a
`
`patient of that provider has an account with YOURCAREEVERYWHERE, the patient can
`
`link
`
`the
`
`account with
`
`the provider’s website
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`and
`
`access
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`the provider’s
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`YOURCAREUNIVERSE patient portal.
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`Defendants offer marketing consultation services to healthcare providers under the
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`YOURCAREEVERYWHERE mark.
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`13
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`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 14 of 46
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`Defendants’ revenue for YOURCAREEVERYWHERE comes from a combination of
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`third-party advertisements on the website, co-branded landing pages, and marketing
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`consultation services.
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`5. Defendants’ customers
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`Approximately half of the customers for Enterprise (MEDHOST’s EHR system) are
`
`specialty hospitals or special providers and the other half are short-term acute care facilities.
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`The “bulk” of MEDHOST’s 700 to 800 Enterprise customers are “middle tier” hospitals.
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`Approximately 10 to 15 percent are “small” hospitals. MEDHOST does not “really compete .
`
`. . very much” for “large tertiary care” hospitals, Dkt. 88 (Anderson Dep.,at 168-69), but it
`
`does have some large healthcare facility customers. The average Enterprise license costs
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`$400,000.
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`6. Defendants’ marketing and sales
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`MEDHOST promotes YOURCAREUNIVERSE products and services to hospitals in
`
`conjunction with its promotion of Enterprise as a way to engage patients and potential
`
`patients, promote patient loyalty, expand the company’s brand presence and encourage
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`patients to use the healthcare facilities’ portal. In accordance with this purpose, MEDHOST
`
`markets YOURCAREUNIVERSE products and services as part of a broader “patient
`
`engagement solution” to “open the door” to sell other MEDHOST products, including its
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`EHR system. Dkt. 170, ¶ 73. MEDHOST receives a subscription fee from any customer who
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`buys the “YOURCAREUNIVERSE suite,” which includes the YOURCAREEVERYWHERE
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`“consumer engagement solution.”
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`MEDHOST promotes its products and services at national conferences, some of
`
`which Epic attends as well.
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`14
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`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 15 of 46
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`C. Third party uses of “care” and “everywhere”
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`In the healthcare industry, the word “care” is commonly used and “everywhere” is “a
`
`fairly common term,” though not as common as “care.” Dkt. 105 (Kiesau Dep., at 137-38).
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`Since 2004, the careeverywhere.com domain name has been owned by Care Everywhere,
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`LLC, a healthcare IT vendor that has no affiliation with Epic. The company identifies itself as
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`“a certified software medical device company focused on integrating point-of-care medical
`
`devices such as infusion pumps and vital sign monitors with hospital information systems to
`
`improve patient safety, nursing productivity, and documentation.” Care Everywhere,
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`“About,” available at http://www.careeverywhere.com/ce/about/ (last visited March 14, 2017).
`
`
`
`
`
`
`
`
`
`The following healthcare organizations use the phrase “care everywhere” as well:
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` Primary Care Medical Center has a website called primarycareeverywhere.com;
`
` a public charity called Kids Care Everywhere has a website called
`kidscareeverywhere.org;
`
` a company called CommuniTake uses the phrase “Mobile Care Everywhere”;
`
` a home healthcare provider uses the phrase “Quality Care Everywhere”;
`
` United Healthcare uses the phrase “Health Care Everywhere” on their website and
`marketing materials;
`
` The Washington State Hospital Association uses the phrase “Essential Care,
`Everywhere” on their website;
`
` The U.S. National Institute for Health uses the phrase “Remote Access to Care
`Everywhere”;
`
` Axxess Technology Solutions uses the phrase “Powering Care Everywhere.”
`
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`Other registered marks in healthcare industry include EXPERT CARE EVERYWHERE,
`
`EVERYWHERE CARE, and CARE. VIRTUALLY EVERYWHERE.
`
`
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`15
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`Case: 3:15-cv-00821-jdp Document #: 233 Filed: 03/22/17 Page 16 of 46
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`D. Potential competition between Epic and defendants
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`Epic does not offer a website that includes general health and wellness content, under
`
`its CARE EVERYWHERE mark or otherwise.
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`According to Epic’s CEO, companies called Cerner, ALLscripts, MEDITECH, and
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`McKesson are Epic’s “direct” competitors, meaning that they appear on shortlists with Epic
`
`after a prospective customer issues a request for proposal. Ninety percent of the time, Epic
`
`competes with Cerner or Allscripts. Epic has identified two instances in which it competed
`
`with MEDHOST for a contract regarding an EHR system. In both instances, the company
`
`was a “long-term acute care” and “rehab” business. Dkt. 103 (Hutchinson Dep., at 56).5
`
` As of March 2016, Epic had 38 percent of the market share for EHR systems in all
`
`physician practices, rehab and long-term care facilities, and hospitals of all bed sizes.
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`MEDHOST’s market share was approximately one percent. As to hospitals having more than
`
`200 beds, Epic had 32 percent of the market and MEDHOST had approximately one
`
`percent.
`
`E. Confusion about the parties’ marks
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`
`
`Epic has not identified any instances of actual confusion between the CARE
`
`EVERYWHERE and YOURCAREEVERYWHERE marks, products, or services. Epic’s CEO
`
`believes that defendants’ YOURCAREEVERYWHERE mark is likely to be confusing for
`
`Epic’s Community Connect participants, but not its direct customers. Dkt. 96 (Faulkner
`
`
`5 Epic states generally in its proposed findings of fact that it has competed with MEDHOST
`on other occasions, Dkt. 170, ¶ 86, but it does not identify any other examples. Instead, it
`cites generally to an exhibit that includes a list of dates and names of various companies