Primary loses seven-year trademark wrangle

The corporate cannot legally trademark the words 'primary health care'

It has taken seven years, a team of high-cost lawyers and numerous court dates but the verdict is in: Primary Health Care cannot legally trademark the words “Primary Health Care”.

The GP corporate wanted to protect its name amid fears that both doctors and the public may confuse it with other health organisations that use the words in their own branding.

In 2010, it decided to prosecute the Australian General Practice Network, whose members had been branding themselves as Primary Health Care organisations.

Four years later, the Federal Government — in the process of setting up its Primary Health Networks — blocked Primary from registering the trademark.

Now, after a prolonged legal battle, the Federal Court of Australia has ruled against Primary, noting that the phrase 'primary health care' has been around for a long time.

The court’s judgement, which runs to 50,000 words, makes clear that this historical fact was lost on Henry Bateman, Primary’s one-time general manager, who apparently did not realise the phrase related to anything aside from the company founded by his father, Dr Ed Bateman.

The younger Bateman had told the Federal Court he used the Collins, Macquarie and Oxford dictionaries to look up the meaning of “primary health care”, but had found nothing there.

His studies left Federal Court judge Anna Katzmann unimpressed.

“The term ‘health check’ does not appear in the dictionary,” she wrote in her judgment. "Nor, for that matter, does ‘ham sandwich’. Each term, however, has an ordinary meaning.”

She added: "Despite the professed ignorance of his son, the evidence indicated that the name was chosen by the applicant’s founder, Dr Edmund Bateman, because it reflected the services that would be available to patients attending the centres."

Primary argued that if other organisations used the words Primary Health Care in their titles, GPs would think they were linked to the corporate, rather than referring to the concept of primary care.

At one point during the long legal wrangle, a judge called 12 GPs to give evidence, finding that at least five understood the phrase in its everyday sense.

Primary argued that patients also would confuse organisations using the words “primary health care”.

But again the appeal court rejected the argument.

Although patients might not normally think of ‘receiving primary health services’, as opposed to ‘seeing a GP’, they would understand an ordinary meaning of the phrase if they were confronted with the three words together, the judges concluded.

Henry Bateman left the company in 2016. Primary will have to pay costs to the Federal Government.


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