This summer, Seabrook House quietly sued Elements Behavioral Health and Recovery Brands, which operates Rehabs.com, for trademark infringement and unfair competition. In the complaint, filed August 26 in the U.S. District Court for the District of New Jersey, Seabrook House asks for a full accounting from both Recovery Brands and Elements of the money they received as a result of people searching for Seabrook or Seabrook House and any subsequent call center on any of the Recovery Brands websites. In addition, Seabrook asks for an award of damages in an amount to be determined at trial of an amount greater than three times the profits of Elements and Recovery Brands or three times the damages sustained by Seabrook. Seabrook also asks for attorney’s costs and lost profits.
The complaint is remarkable in that it brings out in the open what is very common practice, as the complaint itself notes: that the program’s name is used in marketing and promotion, with other programs — and the website — getting the benefit of the prospective patient. Here’s what happens: a desperate person looks for a treatment program online, probably Googling “addiction” or “rehab.” The person lands on a website featuring a searchable directory, finds treatment programs that may be of interest and calls the website’s 800 number. This is actually a call center that determines whether the patient has good insurance (out-of-network is the best), and then funnels the caller to a treatment program that may or may not have paid for the privilege of getting patients. Recovery Brands claims on its website that programs on Rehabs.com do not pay for patients.
In fact, Rehabs.com does use the trademarks and website links for many treatment programs, but the links are, at least in some cases, to the programs’ actual websites and to those programs’ actual phone numbers, based on research we conducted last week. Seabrook House is no longer listed on Rehabs.com.
Elements’ alleged role
In the case of Seabrook House, however, the complaint goes farther, saying that Elements worked with Rehabs.com to pay for advertisements on the website, and to match search results to a call center that leads directly to an Elements call center, which diverts the prospective patient to an Elements facility — even if the patient wanted Seabrook House.
“Defendants’ rendering of this web of deceptive and misleading advertisements using the valuable ‘SEABROOK HOUSE’ and ‘SEABROOK’ trademarks (and many other third-party competitor trademarks) for their own related and/or identical services has, and is likely to continue to cause confusion and to deceive consumers and the public regarding their source,” the complaint said.
Along with the complaint, Seabrook filed a 34-page list of exhibits — screen shots and more — detailing the Elements connections.
Matthew Wolf, vice president for business operations of Seabrook House; David Sack, M.D., president and CEO of Elements; and Abhilash Patel, co-founder of Recovery Brands, all responded to our request for comments by saying they had been advised by counsel not to discuss the pending litigation. In addition, Sack and Patel declared that their companies had committed no wrongdoing.
“My client denies the complaint, and we will defend it if necessary,” said Jessie Beeber, Esq., from Venable in New York City, who represents Recovery Brands. Seabrook is represented by Christopher D. Olszyk Jr. of Fox Rothschild in Philadelphia; Olszyk did not respond to a request for an interview.
We talked to David Lisonbee, president and CEO of Twin Town Treatment Centers in California, and Beth Ann Middlebrook, Esq., lawyer for The Watershed Treatment Programs in Florida, about the case.
“It’s infringement because they’re competing by using Seabrook’s own name,” said Middlebrook. “This is just one example of how the proliferation of treatment providers throughout the country is leading to this type of marketing,” she said. “If I go online and find a number and I think I’m calling a particular program, but instead I’m calling a referral center, they’re going to refer me to a treatment provider based upon whatever private contractual arrangement they have, unbeknownst to me,” she said. “This is a consumer problem.”
When treatment providers become aware of this, they can take action, at least with a cease and desist letter on behalf of themselves, she said. “If Seabrook has instituted this lawsuit, I’m sure there’s a good deal of damages at stake,” she said. Seabrook, like Twin Town, is just one program. It doesn’t have a network of programs throughout the country that people can be referred to. So those geographically isolated programs are likely to suffer the most in an Internet-call-center-type marketing scheme.
“Any defendant in a lawsuit like this is going to deny wrongdoing,” said Middlebrook. “They may settle this, because Elements and Recovery Brands can’t afford to go to trial — they may lose, and it would cost them and tarnish their reputations.” Any settlement agreement would likely include a statement by both defendants denying any wrongdoing, she added. “That’s just par for the course,” she said.
Internet marketing not bad per se
This makes treatment marketing look terrible, we said. “You’re right,” said Middlebrook. But she added that just because treatment providers participate in such referral schemes doesn’t necessarily mean that they are bad treatment providers, clinically. And she doesn’t think the practice is so prevalent that treatment providers feel pressured to participate. She added that The Watershed does not participate in such schemes. Based on her reading of the Seabrook complaint, in which only Elements advertisements popped up when people specifically searched for Seabrook, she said that situation is “egregious.” But, she said, “there’s nothing wrong per se to effectively market yourself via the Internet.”
Lisonbee could not comment on the specifics of the Seabrook complaint. But he is known as an icon of ethics in the treatment field, and said that “it’s pretty clear that patients are being purchased as collateral” on the Internet and through call centers. “Unfortunately, the treatment field is not able to self-regulate and we’re begging the authorities to step in and parent us,” he said.
‘Payola’ and call centers
“They’re all looking for patients who have out-of-network coverage,” said Lisonbee of treatment programs participating in call centers. If a provider is in network, the patient’s HMO or PPO will decide what kind of treatment you can provide. “So it’s popular to go for the out-of-network PPOP patient,” he said. Out-of-network PPOs can also bill for the medically unnecessary and exorbitant drug testing, he said.
Twin Town does not work with call centers, said Lisonbee. “Most of the call centers are working on a payola basis,” he said. “It’s like dealing with a cattle auction. These people aren’t in it to help; they’re in it for the money.”
Lisonbee pointed out that many treatment center websites give no indication of where the program is located. He found his own program listed on his mobile phone. He called the number, and it went to a call center in Florida. It wasn’t just a coexisting ad that popped up. He threatened them and they stopped doing it. “But first I called them 20 times to run up their bill, because every time you do that they have to pay for the click,” he said.
Middlebrook said that treatment programs, when they find their trademarks are being misappropriated by call centers, “just want it to stop; they want the injunctive relief, they don’t want the whole hassle of a lawsuit.” What Seabrook is doing in filing this suit may help other treatment providers to contact websites asking them to stop.
Recovery Brands, which owns the website Substance.com and has ventured into providing content to news outlets, is one of the more respected websites in the field. ADAW learned of the complaint when a reader forwarded it, after we ran a positive article about Recovery Brands (see ADAW, October 6). Elements is also highly respected as a treatment provider. Stay tuned: all parties have agreed to comment when the case is resolved.
This article was revised November 3.