[Jewelry making - Article 00552] - Re: [Orchid] Models for Medical jewelry

[tlmcd AT netzero.com]

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Hi James,

>      Neither the AMA nor the NHTSA will provide YOU with legal advice
>     and most certainly not any approval or disapproval of any specific
>     implementation let alone approval or disapproval of a broad plan
>     of implementation. I still STRONGLY suggest you get a written legal
>     opinion from a solid attorney with their reputation and
>     malpractice insurance on the line. I'll bet it will make certain
>     stipulations that do not give you all the leeway you want. 

    Oh ye of little faith!  I do now have a "definitive" answer from the
    AMA.  I talked with the VP of professional standards again (I think
    he finally realized I wasn't going to give up and I was going to
    call him every week until I got that definitive answer) and told him
    that 

    1) the National Highway Transportation Safety Admin. (NHTSA) 
    published in their brochure that they modified the AMA symbol. 

    2) I found the name of the graphic artist who designed the symbol
    for the AMA 40 years ago and spoke with her. 

    3) She gave me the name of the doctor that assigned her the project. 

    4) Said doc had no less than 5 articles written to various medical
    journals in the 60's and 70's and gave him the article numbers for
    the National Institute of Health identifiers to be able to located
    the article. 

    He faxed me a very nice note stating that after our conversation he
    went back through the archives and that "I (he), and noone else
    currently at the AMA realized we had created this symbol, which
    appears on every ambulance vehicle in the country, nor that we had
    given it to the public domain.  You are certainly free to use the
    symbol for the purposes stated in the AMA's 1963 and 1964
    announcements.  I am enclosing a copy of the AMA's 1963 statement
    and a copy of the (slightly modifed yet) symbol printed by the
    former US Department of Health, Education, and Welfare (USDHEW)." 

    The 1963 statement clearly states that "This symbol may appear in
    any size and color". 

    If ANYONE wants a copy of the three different versions of the symbol
    (AMA, USDHEW, and NHTSA) and the 1963 AMA statement and the 1964
    USDHEW symbol brochure, I will be more than happy to scan them and
    either email them or post them under the Ganoskin galleries. 

    re: my "leap" regarding color on the NHTSA brochure (which is now
    kind of mute with the AMA's recognition of public domain on their
    symbol and statement it could be any size and color) was based on a
    number of different states laws on Lexus/Nesux legal search
    designating color assignments regarding the types of personnel and
    badges as well as patches that they could wear, not on "what I
    wanted it to say".  If the states could change the color, then NHTSA
    would have been hard pressed (not impossible, but highly improbable)
    to make a case that changing the color to the currently most common
    colors for medical identification symbols was a trademark
    infringement.  Perhaps I should have made the fact that I'd already
    researched that a bit clearer. 

    re: the liability issue, my attorney who is a very prominent
    intellectual property and contract attorney stated weeks ago that
    "anyone can sue anybody over anything.  The key is to demonstrate
    and document every step of a good faith effort in terms of research
    and issue a disclaimer on every piece of marketing material that you
    use along with a disclaimer sent with the actual product."  No, I
    didn't get it in writing, but did I mention that I tape or
    transcribe (if person refuses to be taped) important business phone
    conversations?  She agreed to be taped. 

    Ironically, since she knows me so well from working with a former
    employer, she 1)told me there was no reason for me to hire her to do
    the trademark and copyright search and application work, since I was
    more diligent and persistant than anyone she has ever known (she did
    NOT make it sound like a compliment<G>).  She said to just call her
    if I run into stumbling blocks down the road. 

    I have taken numerous graduate level law courses for CPE
    requirements for the accounting society I'd belonged to at one
    point.  She's asked me 9 years ago after working together on a
    former employer's issue why I didn't go on to try for the bar exam.
    On this particular issue, I'd been more persistant than she was, had
    transcribed the conversation with the auditor (since auditor refused
    to be taped), and sent the transcript to the head of the govt
    agency, who rescinded the audit, reaudited (with a differnet auditor
    who asked for a copy of my tape with him to cover his behind),
    reversed the decision and I saved the employer $80,000.  The
    attorney refunded her hefty fee, which is probably why she remembers
    how darned persistant and diligent I am.  

    The reason I didn't become an attorney - I don't debate well for
    issues (um, clients) I think are morally in the wrong, and I don't
    do well with doubletalk.  I pretty much let my opinion be known.   

    She did help me by giving me the class number for the trademark form
    (Class 014 for precious metal jewelry and its "imitations") and
    suggested using a less "descriptive" tradename than the one I'd been
    thinking about.  

    She also reinforced that due to international laws, contracting with
    only US and Canadian firms would cause me much less headache and
    money due to legal paperwork filing overseas and that there are a
    few countries where labor is much cheaper that do not honor
    "international" copyright laws on certain items, so the
    subcontracted manufacturers are legally able to steal and reproduce
    your design.  (Actually happened to a jeweler client of hers).  

    P.S.  Medic-Alert and SOS (Swiss company with largest international
    market share) have been making medical ID jewelry in plain gold and
    silver for over 27 years that I know of. 

Sincerely,
Tina McDonald 
tlmcd AT netzero.com

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