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Friday, December 31, 2010

Komen ‘For the Cure’ Trademark Protection Ignites Ire of Some Breast Cancer Bloggers
BY ERIC T. ROSENTHAL, OT Special Correspondent

It isn’t always easy being perceived as the 800-pound gorilla or Goliath in the world of breast cancer advocacy, especially when that position can make for a very large and vulnerable target for criticism from the blogging Davids out there with virtual slingshots.

Early in December, just as the San Antonio Breast Cancer Symposium was getting under way, The Huffington Post published an article charging that Susan G. Komen for the Cure was “elbowing out” other charities and events over use of the word “cure.”
The author, Laura Bassett, wrote that "in addition to raising millions of dollars a year for breast cancer research, fundraising giant Susan G. Komen for the Cure has a lesser-known mission that eats up donor funds: patrolling the waters for any use by such organizations that use any variation of ‘for the cure’ in their names."
Komen, she said, had “identified and filed legal trademark oppositions against more than 100 of these Mom and Pop charities…and many of the organizations are too small and underfunded to hold their ground.”
Various individuals were interviewed and related how Komen had “come after them ferociously with a big law firm: ‘[Komen] said they own ‘cure’ in a name, and we had to stop using it, even though we were raising money for an entirely different cause [for example, lung cancer],’ or had been asked to stop using the phrase ‘for a cure’ and ‘to never use the color pink in conjunction with their fundraising.’”
The article prompted 345 comments to date.
Then the following day health activist Alicia C. Staley wrote an article titled “Lawsuits for the Cure” on the WEGO Health (“empowering health activists to help others”) site, noting that as a breast cancer survivor she was infuriated when she read about how Komen actively pursues lawsuits against smaller foundations and individuals using the “for the cure” term.
"Honestly,” she wrote, “don’t we all have better things to do…like find a CURE for cancer instead of chasing after small-time charities?”
Ms. Staley said she took exception with how Komen defends its lawsuits and charged -- based on information from the most recent annual report that only 17% of the donations received and revenue earned by Komen in 2009 went to actually finding a cure -- that an organization that is actively pursuing other small charities over use of “for the cure” cannot be spending the majority of funds toward “Research for a Cure.”
“For Komen to lay claim to the term ‘for the cure’ or any variation of ‘the cure,’ shouldn’t they need to show a greater effort towards funding the research required to find ‘THE CURE?” she asked. “$135 million for educational programs will certainly help educate men and women about breast cancer and treatment options, but will not help ‘cure’ cancer.”
This article also attracted many comments and discussions, on both the site itself and on Twitter.
The barrage of vitriolic online criticism was reminiscent of other attacks Komen has experienced recently.
For example, in April Komen was blasted by some for the organization’s cause-related marketing relationship with KFC since its fried-chicken products were considered unhealthy contributors to the obesity epidemic; and in October 2009 misinformation subsequently compounded by others with separate agendas sparked a controversy related to Komen’s breast cancer advocacy initiative in Egypt (OT, 11/10/09).
But what was behind some of the animosity expressed by the bloggers; how much of the controversy was related to the semantics of “cure”; and was Komen acting as a big bully by opposing use of “for the cure” by other organizations or was it protecting its trademarks as required by regulations put forth by the federal government?
In the weeks following the original postings I spoke with both Komen officials and Ms. Staley about the issue.
Alicia Staley
Alicia Staley said that in the 20 years since she has been treated for cancer (at age 19 for Hodgkin’s, and then for two bouts of breast cancer in 2004 and 2007 before undergoing a prophylactic double mastectomy in 2008), she has seen very little progress being made in breast cancer.
“The bottom line is we are not seeing the precipitous drop in breast cancer that you would assume [with all the funding]; I think we’re going backwards.
“I reacted so strongly because I’m 20 years into cancer survivorship. This is my life.  I live it every day. Many people I’ve known with Hodgkin’s or breast cancer have passed away, and [it really bothered me] when I read [in the Wall Street Journal] about Komen’s lawyer mentioning ‘the lawsuits as responsible stewardship of our donor’s funds.’”
She explained that she had first read the Huffington Post article and then went online to do more research, and saw an article in the August 5 WSJ  by Clifford M. Marks titled  “Charity Brawl: Nonprofits Aren’t So Generous When a Name’s at Stake,” which focused on Komen and the Lance Armstrong Foundation’s efforts to protect their respective trademarks, as well as a number of other smaller charities fearful of look-alike competitors.
“Komen has been amazing,” Ms. Staley said. “I think that what Susan G. Komen has done has been extraordinary, and others look to Komen and want to be like them.  They’ve raised a ton of money, and I want more research to find more treatments and to eradicate breast cancer. Komen is the gold standard, I just don’t think [these lawsuits] are in line with their mission statement, and I’m just pushing them to do more and stay focused.”
When asked, Ms. Staley agreed that her definition of “cure” might be a bit narrow, but said that she stood by her statements concluding that Komen spent only 17% of its donations toward “finding a cure,” and that Komen looks like a business model involved in mergers and acquisitions, which bothered her.
Komen Attorney Jonathan Blum
Jonathan Blum, Komen’s general counsel, told me that the Huffington Post article may have resulted from Komen’s contacting an organization called “Mush for the Cure,” when that Minnesota-based breast cancer fundraising group filed an application with the US Patent and Trademark Office (USPTO).
"We have a watch service that searches for anything related to ‘Komen,’ or ‘for the cure,’ or ‘for a cure,’ and notifies us whenever anything has been filed with the trademark office,” he said, adding that organizations have a legal obligation to challenge use of their trademarks in order to keep them.
“As soon as we see that something has been filed, we try to reach out to the person to talk to them about our concerns.”
He said the issue arises more with other nonprofits than with corporations because of the possibility of confusion among donors.
“For example, if a pharmaceutical company was trying to sell a cold formula using ‘medicine for the cure’ to sell a product then we wouldn’t bother with them because it’s clearly not in the realm Komen would care about. It’s similar to Dove soap and Dove chocolate -- they’re not in the same world, so there wouldn’t be a trademark conflict.
“However, the situation changes when you start to talk about charitable fundraising, which is the realm we are concerned about because of confusion among donors as to whether the money is going to Komen or not.”

He said that based on Komen’s marketing strategies there is now a strong association between the organization’s very famous and strong trademarks such as “Race for the Cure,” “Susan G. Komen for the Cure,” “Rally for the Cure,” and about 130 more related registered trademarks as well as common usage for other “for the cure” marks, and that Komen markets itself internationally, nationally, and locally with various “blanks” for the cure.

“If you look at our affiliates’ websites, it can be anything from ‘baseball for the cure,’ ‘lawyers for the cure,’ ‘volley for the cure,’ ‘golf for the cure’--you name it, we’ve got all sorts of events associated with it. So as soon as we learn about it, we contact these people on the front end before they have invested heavily in the name or expended significant resources and work with them to find a suitable arrangement.”

Those arrangements, he said, range from changing the name so it doesn’t include “for the cure” or “for a cure,” or finding a way to remain in similar spaces by clearly differentiating the two organizations.

He used as an example, “Kites for the Cure,” a group that fundraises for lung cancer: “We talked to them about changing the name of the event, and in the end settled quite amicably, agreeing to coexist. They could still use ‘Kites for a Cure’ if they didn’t make it look like a breast cancer fundraiser, and we can still use the ‘for the cure’ mark for purposes of breast cancer.”

Komen filed its USPTO application in 1988 for “Race for the Cure,” which was officially registered in 1990.

Because of its strong recognition factor and Susan G. Komen Breast Cancer Foundation’s expansion, the organization officially changed its name during its 25th anniversary year in 2007 to Susan G. Komen for the Cure, after filing for the trademark a year earlier.

The silver anniversary also marked the unveiling of Komen’s new logo, a pink ribbon in a runner’s stance.

The Huffington Post article reported that Mush for the Cure raised money for the Frisco, Texas-based National Breast Cancer Foundation (NBCF), which had warned Mush for the Cure to file a trademark to protect its “event legally against the Komen Foundation,” before it could accept the donations.

It was the filing with the USPTO that triggered the alert that Komen’s trademark was being challenged by another breast cancer organization.

Never Actually Sued Any Nonprofit Over Trademark Infringement

Mr. Blum said that Komen has never sued any nonprofit over trademark infringement, and that what takes place is a formal administrative process from the Patent and Trademark Office involving what he termed “very nice” cease-and-desist letters.

“The pink ribbon is truly generic, and no one owns it, but we are concerned when someone uses a stylized version that looks like a running person.”

He said that nonprofits are held to a higher standard but are supposed to use business techniques to run their organizations, which can then lead to getting accused of being too corporate.

“We try to make the most efficient use of our resources toward our mission. Sometimes two nonprofits competing for the same space can find themselves in a fundamental existentialistic crisis because people can’t tell them apart. Fortunately we have a bit of a luxury since people know who we are,” he said.

Komen Communications Director Andrea Rader

A response to Alicia Staley’s article by Komen’s Director of Communications, Andrea Radertakes issue with the conclusions drawn about research funding versus other expenditures made to deliver on Komen’s mission to end breast cancer.

Ms. Rader wrote that the $59 million figure used by Ms. Staley paid for more than 100 new research grants in 2009, and was part of $260 million currently funding more than 500 research programs worldwide.

“We’re the largest nonprofit funder of breast cancer research outside the federal government, so it’s clear that we are, in fact, fulfilling our promise to fund science.

“But research alone is just one part of the cancer equation. Even today, many women don’t know they’re at risk for breast cancer, so educating women is important. Once they’re educated, they need screening at the appropriate time. And if they’re diagnosed, they need access to treatment, so that the research we fund can actually benefit them. Many women also need some help getting through their treatment, and they need someone fighting for them.”

The Komen response stated that that’s why the organization funds research, community education, screening and treatment programs, and advocacy, noting that it paid for 600,000 breast screenings for low-income and underinsured women last year, funded 90,000 follow-up screenings, and provided psychosocial support and financial aid to 100,000 women.

Ms. Rader mentioned other Komen initiatives and said that 84 cents of every dollar raised goes to all these programs, earning Charity Navigator’s highest ranking for the last four years.

“As a result, people trust us,” she said. “They’re entitled to know that ‘for the cure’ means that their donation is going to Susan G. Komen for the Cure for this work. That’s why we protect our name.”

Komen does not go after small charities to force them out of business, Ms. Rader said. “That has never been our intent, nor is it our practice, nor do we spend $1 million a year doing it. Typically, we ask these charities to keep doing what they’re doing, but to consider changing the name of a “for the Cure” promotion at a later date. Usually these are resolved amicably, as they should be.”

Following this posting, though, many other comments on the site and on Twitter criticized the response for being inadequate and missing the point.

Ms. Staley told OT that she replied to Komen via e-mail four days after Ms. Rader’s posting inviting the organization “to come back and look at some of the questions raised,” but as of about two weeks later had not heard anything back.