Facts

Comparion Medical Analytics Inc. grants awards to hospitals and then sells them the right to publicize the awards. It gave Prime Healthcare Services Inc.'s, and Prime Healthcare Services Foundation's hospitals CareChex Medical Excellence Awards. Comparion then brought an action against the two entities when they posted to their website a document that listed the awards.

PLAINTIFF'S CONTENTIONS:
Comparion contended that it formed an agreement with defendants and that defendants breached the agreement by publicly disclosing the awards without securing a license from Comparion. It also contended that defendants infringed its "CareChex" trademark and healthcare ratings copyright.

Plaintiff asserted that the nominative fair use defense was not available because defendant's use of the CareChex trademark falsely suggested that plaintiff sponsored, endorsed, or approved the use of its mark to promote and market the medical services of defendant's hospitals. Plaintiff further contended that its top ten percent healthcare rating was copyrightable, based on Health Grades Inc. v. Robert Wood Johnson University Hospital Inc., 634 F. Supp. 2d 1226 (D. Colo. 2009).

The third amended complaint asserted claims for trademark infringement, breach of contract, copyright infringement, federal unfair competition, trademark dilution, and unfair competition premised on the use of Comparion's "CareChex" mark.

DEFENDANTS' CONTENTIONS:
Defendants moved for summary judgment on the grounds that use of the "CareChex" mark was nominative fair use, that Comparion's ratings and awards were not protected by copyright, and that listing the awards was a fair use. Defendants also moved to dismiss the breach of contract claim on the ground that Comparion failed to allege that the parties had entered into contract.

Result

The court found defendants' use of the mark was a nominative fair use, and that Comparion's awards, based on a top ten-percent rating, were not copyrightable expressions. The court also found that defendants' use was a fair use, and that Comparion failed to allege that it had entered into contract with defendants, and granted defendants' motions.

Other Information

According to plaintiff, the court found the mark to be nominative fair use because plaintiff endorsed defendant's services by giving it awards in 2013. The court further found the holding in Health Grades Inc. v. Robert Wood Johnson University Hospital in opposite. FILING DATE: May 5, 2014.