University hospitals, hospitals, and medical practitioners in community practices are increasingly concerned with their own placement in the market. If they want to act economically, it is necessary to sell not only the necessary medical care, but also additional offerings, which are often common in wellness treatment centers. Hospitals, medical practices and care facilities carry out marketing, develop logos and try to present their brands in such a way that patients trust them and recognize them. The following article examines which principles need to be followed when building and protecting a brand.

Competition in healthcare

The competitive environment surrounding healthcare has radically changed in recent years. The healthcare fund, which is fundamentally regulated and funded by health insurance companies, cannot pay for many of the services available today, which go well beyond basic medical care. Further services are “sold” to the patient, often privately, by doctors and hospitals separately.

Medical and technical progress is increasing rapidly – as is the number of treatment options and the increasing specialization of the medical profession. At the same time, the requirements of the technical equipment of hospitals and practices are growing, which increases costs. This results in a fundamental, structural change in the healthcare landscape: Instead of doctors’ individual practices, community practices or medical care centers are increasingly forming. Hospitals are also increasingly being operated by large private carriers.

In this far more private environment, each hospital and medical practice, regardless of size and legal form, but also every nursing facility and every other provider of medical or nursing services, must stand up to the competition and position itself. A consistent and effective marketing strategy is therefore necessary.

Be a guiding light

It is important to be recognized by potential patients or clients and to be linked with certain values and/or special services. It is necessary to create a transportable image under one brand or, said another way, under one “roof”.

The brand is a sign that serves as a source of inspiration and quality for the company (hospital, practice, institution) or for a specific product or service of the company. The trademarks must be individually developed for each company and for each product, and the image, i.e. the brand message, which is to contain the sign, must be conveyed to the (potential) customer/patient.
The brand messages must be communicated in a clever way to make them known in the market and to enable them to be recognized again.

Trademark strategy:

A successful brand strategy makes an offer visible, conveys messages and allows for an identification with the values that the sign conveys. Patients should gain confidence through the positive perception of the brand and feel comfortable with the offer. They should have the feeling that they have found the right place for themselves and their health concerns.

Achieving this goal requires the development, protection and enforcement as well as communication of the brand directly to the desired target patient/customer.

a) Development of the brand:

First off, the development of a sign that can convey the desired brand message for the company or the product designated by the brand is necessary. To these ends, the following is required:

• the development of a brand name,
• the development of a trademark, and
• the defining and designing of products and services.

Most hospitals and care facilities already have elements of a brand. Not infrequently, there is a name and a logo. These are also regularly used and communicated – for example on homepages, flyers, stationery and business cards. Often it is a sign for the entire company. The development of trademarks, or designs, for individual services or areas of a company is less common.

b) Protection and enforcement of the brand:

However, the protection and protectability of a trademark is often not sufficiently deliberated. Even if it seems logical to approach brand protection only after branding, this course of action carries risks. The legal requirements for registering the IPR should be taken into account when developing the brand name and logo. Otherwise, it may happen that a design, which has already been developed and established in the company, will be rejected in the application to protect the trademark. Much worse, though, there is hardly any way to deal with the use of the non-protected design by a third party.

Especially in the case of the (otherwise) successful development and use of a non-protectable logo/design, there is, in particular, the danger of being imitated and thus having to share the design’s luster.
The use of a self-developed design that has not been checked to see if any third party has the right to the design or parts thereof or to similar designs may be prohibited by third parties who can exercise their own rights to the design. In addition, the third party can demand a considerable amount of damages in certain cases.

Moreover, it is particularly important in the sensitive start-up phase of a brand to be able to protect the logo/design effectively against imitators. For registered trademarks, claims to stop the use of similar or similar designs are much easier to enforce than for unregistered designs. This is because, as a rule, for registered brands there is no need to provide separate evidence that the design is used as a company or product design. Such proof can be quite difficult with new non-protected logos or designs.

c) Communication of the trademark:

Last but not least, the designs and logos developed and optimized for a company and its products must be communicated, i.e. with the brand message they convey, to the potential patients. For this purpose, meaningful communication channels should be researched, through which appropriate communication of the trademark should take place as regularly as possible.

Practical tips:

To implement a brand strategy and effective brand protection, the following approach is recommended from the outset:

1. The protection of a design/graphic/logo should be examined and ascertained.
2. For effective brand protection, the classification of services, which must be specified later in the application, is already very important at the time of developing the design and the examination of its ability to be protected. It is a strategic decision that allows or restricts the brand in the future. The capability of a design to be protected must not only exist in the abstract, but specifically for the products and services for which the design is to be used. It is also crucial to assess whether the developed design infringes the rights of third parties. The definition of certain goods and services for which the brand is to be used is also crucial. In most countries there is a uniform classification system for the products and services (Nice Classification). For hospitals, medical practices and nursing homes, all essential services from the core activity areas are included in Class 44. This class covers services in the health and care sector. It is often useful to add additional services that are worth protecting for a facility outside the health and care sector. These could include, for example, training, education, social services, entertainment, sports and the like. These services are assigned to other classes and must also be entered in this way. The inclusion of these additional services is not only a legal requirement for brand protection, but also supports the definition of the brand image. For example, the service “professional training and training in the healthcare sector” simply implies the professional competence of the provider, which is important for branding. It is therefore always necessary to examine whether services from classes other than the main activity area of the trademark application are eligible. The determination of the services that are to be protected under the trademark is the most important component of a trademark application, in addition to the examination of the possibility for protection. The services provided determine ultimately the factual extent of the trademark protection. When the service directory (the classification) is created, it is also decided whether a trademark can be registered online with a slight fee reduction or whether the conventional application should be chosen by paper form. When registering online, services may be registered only with the terms used in the electronic database to designate goods and services. In the case of individually developed services, registration is recommended in paper form since, given sufficient clarity, it is also possible to define the terms of the services themselves. Thus, when in doubt, the services of the registering company or the product can be described more accurately than with the general terms stored in the database. The classification as the “heart” of a trademark should be made with the utmost care and, if possible, legal support.
3. To protect the company from claims for damages by other trademark holders, the potential infringement of foreign trademark rights by the proprietary trademark must be investigated and excluded. If a hospital or care facility violates the trademark rights of existing protected trademarks, claims for damages may result.
4. If the developed brand is “clean” after steps 1 and 2, a trademark registration is made to protect it effectively against infringement of trademark rights, in particular by preventing the utilization by third parties of already established brand contents and through the effective enforcement of the proprietary trademark rights.
5. If the trademark is registered, it must be communicated; that is to say, it must be used with content, since: The non-use of trademark rights entails the risk of deletion.
6. Last but not least, professional brand monitoring should be carried out here. As a trademark holder, you will be notified of whether your own brands are being infringed or whether an infringement is foreseeable. Only with this knowledge can trademark holders defend their own rights.

By Christine Vock & Liane Allmann