The MTA sues the IMTA over service mark infringement. Can "medical tourism" be owned?

 

We have excluded any comments from the industry that might influence the legal case, and we have also sought comments from the parties involved in the legal action.

We welcome comments from the industry on this matter. (Please comment below). But we must advise contributors that the issue is an ongoing legal action and that they should bear this in mind. So any comments submitted must not relate to the ongoing litigation. The article raises issues for consideration within the industry as a whole. We encourage free and open discussion on these matters.

In putting together this article, IMTJ has sought advice from its lawyers to ensure that we present a balanced view, and that comments from contributors and commentators relate to the issues rather than any allegations raised by either side.

Background

Last week, the medical tourism industry learned that the Florida based Medical Tourism Association (MTA) headed by Renée Stefano and Jonathan Edelheit were suing the International Medical Travel Association (IMTA), a non profit trade association registered in Singapore over service mark infringement and unfair competition.  (The legal action was made public in an IMTA announcement).

The situation developed further when the IMTA announced last Thursday that in the light of the impending court case it had decided to ask its members to vote on dissolving the IMTA.  Ruben Toral from IMTA says that they wish to avoid a protracted and expensive legal battle with the MTA which their members could not afford to support.

The IMTJ asked a variety of industry experts, MTA and IMTA members, Board members of both associations and heads of other medical tourism associations for their reaction to the news.  We received a wide range of responses.
 

The IMTA viewpoint

Ruben Toral, IMTA President said that the whole legal action made “no sense, the IMTA was clearly the first organisation of its kind to serve the medical travel industry”. He also pointed out that as a non-profit organisation, the IMTA was not involved in any commercial activity whatsoever.

In its statement, the IMTA states that it was incorporated as a travel association before the MTA. Toral said that the IMTA made several attempts to settle this issue amicably with the MTA but were unsuccessful and they still do not understand why they were singled out by the MTA when there are other medical tourism associations using the words “medical travel” and “medical tourism” in their names.

The IMTA states that in its view the action taken by the IMTA was, “a potentially dangerous precedent for the medical tourism industry, and creates a framework that moves dispute resolution from the boardroom to the courtroom”.

The MTA viewpoint

The following statement was provided by Jessica Johnson, Director of Operations at the MTA.

“The Medical Tourism Association, Inc. was incorporated in May, 2007 in West Palm Beach Florida, United States of America with a mission of promoting industry development worldwide through transparency in the quality and pricing of healthcare offered by international providers, creating communication and educational forums, and facilitation global sector development issues.  Since its inception, Medical Tourism Association, Inc. has been establishing significant goodwill worldwide, developing a global membership network and fostering ties and country specific initiatives in over 40 nations.

 IMTAA established a corporation this year in 2009, also in Florida, USA with recent business practices resulting in name confusion, undermining Medical Tourism Association goodwill, and violating trademark rights in the United States of America under US Trademark Laws and US acceptable business practices.  Negotiations initiated by the Medical Tourism Association, Inc. to resolve this trademark dispute amicably were specifically terminated by IMTAA’s and IMTA’s attorney, Dale Vandemark, Esquire on July 2, 2009, contrary to the recent public release of information by Mr. Ruben Toral, IMTA president regarding this matter.

 The Medical Tourism Association, Inc. has not received any negative feedback from its Advisory Board or its members on this issue.”

We have also provided additional comment from the MTA later in this article.

Views from the medical tourism industry

The majority of those that responded had strong opinions about the case and the subsequent proposal for the IMTA to disband. Some respondents asked to remain anonymous because of their current involvement in the MTA.

Some industry experts we spoke to knew about and/or were unsurprised to hear about the legal action. Two current MTA Advisory Board members who were asked about the case said that they were completely unaware of the MTA’s decision to take legal action. One said;

 “I was not aware of this legal action. I don't think it was ever discussed in MTA Advisory Board calls”; the other said that unless we had told him/her about it he/she would not have known about it.

We asked industry experts what they thought of one trade association suing another:

 

Julie Munro CEO of IntermedGlobal and founding member of the Medical Travel and Health Tourism Quality Alliance said; “I don't know why the MTA is taking this action. The goals of the two associations are distinctly different: IMTA states it represents the interests of medical travellers and medical travel industry; MTA promotes international health providers to American insurers and third parties”, added Munro.

“Since this industry is not yet well-defined and there is ongoing debate about what it is exactly - and indeed, is it even an industry, how can any legal jurisdiction take this suit seriously?”

Munro also said, in reference to the use of the term “medical travel”, that:  

“The IMTA carefully deliberated the terms medical travel and medical tourism and specifically chose medical travel.”

Josef Woodman, CEO of Healthy Travel Media and author of Patients Beyond Borders said;

“I find it regrettable that such activity is occurring in our sector.  It’s not in the spirit of the non-profit community to resolve differences in this manner, particularly when so many variations of the very common “medical tourism” nomenclature exist in the world. Unfortunately lawsuits are serious business, wasting precious time and resources, creating unnecessary contentiousness and impeding progress.”

Others felt it was important to discuss the use of the terminology “medical tourism” and as Jack Lundberg CEO of Medtreks pointed out, the term “medical tourism” was a phrase originally coined by the media and the copyright to exclusively use that term is not owned by anyone.

Julie Munro added, “There are no commonly accepted definitions of medical tourism or medical travel. With use and familiarity, terminology is developing that is starting to differentiate among medical travel, medical tourism, health tourism, and so on”.  

Lorraine Melvill of Surgeon and Safari and the Founder of the Medical Tourism Association of South Africa said she believes that the MTA took this action because “(they) have structured their association as a commercial venture and as a result are suing due to commercial competitiveness.”

We asked if she was concerned that the Medical Tourism Association of South Africa (MTASA) is under threat of legal action from the MTA and she said she was not. “The MTASA was registered as non profit in 2006 and is based in South Africa not USA. Our objectives are not commercial but rather about bringing together the various sectors involved in medical tourism in South Africa based on a sound constitution, with a clear code of conduct and principles relevant for the industry, yet providing transparency of product and service to both local and foreign patients/ clients.”

Another high profile industry member and leader of a medical travel association fears their organisation may be next in having legal action taken against them and thus wishes to remain anonymous. This individual had the following to say about the reasons behind the MTA suing the IMTA:

“It is deplorable that the two lawyers who own an association that has only been in the industry since May of 2007 ….believed they own the words "medical tourism association", which describes a concept used regularly by the media, the public, and is not unique in any way.”

“Their (the MTA’s leadership) steps show off their legal prowess in the courtroom rather than demonstrating leadership and sustainability as a health sector trade association.

We asked how people felt MTA members would react to this sequence of events and Julie Munro had this to say:

“MTA members should be very concerned. While the MTA states it is a non-profit association, it has never issued a profit and loss statement to members. Apparently it is not legally required to do so, but I think now is the time for members to insist P&Ls be presented. How can the MTA afford to initiate a lawsuit? They have told members the association has no money. So how much are they paying the attorneys who will be filing the case? Whatever the amount, are they using its membership dues?”

A leader of another medical travel association had this to say on how MTA members might react; “what little personal discussion I have been privileged to have with mutual members of MTA and my organisation and others who are simply members of MTA and just friends of mine leads me to the impression that disapproval for their action is extremely high. It will eventually cost them, as members realize that their dues money may have been used to pay the legal fees to sue another organization that they may also be a member of.  Rather self-defeating.  Couldn't their dues money be used for something more positive and contributory to the industry?"

Rudy Rupak of Planet Hospital who is a member of neither organisation said the following when asked for his thoughts on how the case and the IMTA’s proposal to disband will impact on the industry’s perception of the MTA:

“Is this how to best serve the MTA’s members?  To file lawsuits that in the end do more harm than good?  The IMTA demonstrated with their actions that it was not in the interest of the organization to use their funds to fight an absolutely meaningless fight, where was the harm to the MTA in all of this?”

MTA response

Given the strength of feeling of some long term members of the industry, we gave the MTA the opportunity to provide a further response. Jessica Johnson, Director of Operations at the MTA, provided the following response:

“Medical Tourism Association, Inc. conducts regular meetings, teleconferences and committee calls, on a far better and bigger scale compared to any other so called associations of medical tourism or healthcare travel industry. Members and board members are voluntary are not available for every meeting, yet minutes are taken and available to them. Therefore it is very possible that one individual member is not aware about the origin of various initiatives taken by the Medical Tourism Association, Inc.”

“Through various communication resources that The Medical Tourism Association uses to communicate with its members, several concerns are raised by members and other industry well-wishers regarding unethical practices, unfair competitions, commercial activities and biased journalism within medical tourism domain. Hence, the Medical Tourism Association has decided to take such measurement to protect the industry. The Medical Tourism Association doesn’t take personal decisions; decisions are developed based on direct and indirect, but accumulated voices and concerns raised to it. The fact that the Medical Tourism Association hasn’t received any formal complaint from any member against the lawsuit significantly clarifies that the members have no objection on such action. In fact, we have received vocalized appreciation on such initiatives.”

“Please mention about Medical Tourism Association’s continuation running a recognized magazine which was founded and is run by a non-profit association, while other associations sold the rights to their magazine to a commercial organization, which we are now to believe is unbiased in nature.”

(EDITORIAL NOTE: We assume that this refers to the purchase of IMTJ by Intuition Communication in 2009. IMTJ was not previously owned in whole or in part by any association. It was owned by Panacea Publishing, a commercial business publishing company in the UK.... END OF EDITORIAL NOTE)

“We would appreciate if you could clarify to us the name of the member and board members your referred to so we can provide you the status of member. Or at least provide us sufficient evidence that the people who have raised the concern are active member and board member of the association. What evidence you have that the person is an active board member or member? Our website does not indicate whether they are active or not. Do not go to our website as it might not have updated information.”

(EDITORIAL NOTE: those Members and Advisory Board members who contributed to this article stated to us that they are current MTA members; they are listed as such on the MTA web site. END OF EDITORIAL NOTE)

IMTJ viewpoint

IMTJ will remain independent of any associations in the sector, and retains the right to comment on issues that it believes may impact a fast developing industry sector. IMTJ supports free and open debate on such matters.

The legal action and subsequent discussion raises a number of issues for debate:

1.    Who owns or should own “medical tourism”? Should an association aim to “trademark” the terms medical tourism association and medical travel association?

2.    What does the recent action mean for trade associations who already use the phrases “medical tourism” and “medical travel” in their name?

3.    Is it time to create an international trade association to represent industry interests, drive standards and quality and create consensus in the sector?

4.    If it is time, how does the industry create such a trade association and structure it along “best practice” guidelines for trade associations, and who should drive such an association?

5.    How do we create a “meeting of minds” amongst people with clearly differing views of how the industry should be represented?

FURTHER CONTENT PUBLISHED BY THIS AUTHOR

New model for medical tourism

Articles, 13 January, 2011

Cyprus' model for medical tourism is examined by Caroline Ratner

Backtracking on non-compete clause

Articles, 20 December, 2010

The US Medical Tourism Association responds to criticism on its non-compete clause

Destination Cyprus

Articles, 06 December, 2010

Caroline Ratner attended the recent Health Destination Cyprus event

Good or bad for medical tourism?

Articles, 01 April, 2010

We question what effect the US healthcare reform will have on medical tourism

Cross border suits

Articles, 18 March, 2010

Could your clinic be sued in a UK court?

The role of accreditation

Articles, 18 February, 2010

What does accreditation mean to a medical tourist business

Where do we go from here?

Articles, 09 October, 2009

Caroline Ratner summarises the debate around 'Who owns medical tourism?'

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