A federal judge in Little Rock heard arguments Wednesday over whether two pharmacies or a marijuana dispensary should be able to go by the name Doctor's Orders.
There are two pharmacies, jointly owned by White Hall Pharmacy LLC, that operate under that name in Jefferson County. But there's also a medical-marijuana dispensary in Hot Springs that calls itself Doctor's Orders Rx Inc.
Both claim they are entitled to the name and that the other should be forced to give it up.
On Wednesday, the pharmacies asked a federal judge to issue a temporary restraining order to stop the dispensary from using the name. They say its pharmacies have used the name for 10 years, and have received about 60 calls since the dispensary opened May 10 in Hot Springs, three counties and more than 50 miles away. The callers, they say, are either longtime customers demanding to know why the well-respected business is now in the marijuana business, or people with medical-marijuana prescriptions seeking to get them filled.
The White Hall druggists say they are afraid of losing customers and their employees are weary of telling callers that they don't sell marijuana. The business also says it worries that its pharmacies will be subjected to an investigation by the Drug Enforcement Administration, which doesn't allow the pharmacies to sell marijuana or other Schedule 1 drugs.
[RELATED: Complete Democrat-Gazette coverage of medical marijuana in Arkansas]
The dispensary, owned by Donald Sears of Mayflower, has been receiving extensive publicity since it became the first medical-marijuana dispensary in the state to open and because it is one of only two dispensaries, both in Hot Springs, currently open to serve more than 13,000 card-carrying marijuana patients across the state.
Sears says he had never even heard of the Jefferson County pharmacies when he incorporated Doctors Orders Rx Inc. on May 26, 2017, with the secretary of state's office. If the name was already in use, he asks, why would the state allow him to incorporate under that name?
The plaintiffs say they use a red Rx symbol on a white background on the pharmacy buildings and the businesses's delivery vehicles, and note that the dispensary uses large red letters spelling out "Doctor's Orders" and a phone number on the new business's windowless white building. They question whether it is a coincidence or an attempt to piggyback off the pharmacies' clout.
Sears vigorously denies that he is trying to copy the pharmacies' mark, saying he had never even seen it until the pharmacies' attorney sent him a cease-and-desist letter on May 14. His attorneys say the phrase "Doctor's Orders" is a common, generically used phrase and, "We don't feel it should be afforded trademark protection."
Attorney Charles Singleton of Little Rock also noted that, "If anything, [the] pharmacy business conceivably has benefited from the publicity and media exposure brought to it by the trade name controversy they have created."
A restraining order, he said, "would in effect cause my client's dispensary to shut down" until a new name was decided upon.
After listening to arguments Wednesday afternoon during a telephone conference in her Little Rock courtroom, U.S. District Judge Kristine Baker said she would take the matter under advisement, with a ruling to follow "in short order."
Baker said the order will address only the request for the temporary restraining order, which can last up to 14 days. She said she still intends to conduct a hearing June 14 on the pharmacies' request for a preliminary injunction that, if granted, would stop the dispensary from using the name until the case is resolved.
Scott Morgan, an attorney for the pharmacies, said during the conference that the business has applied for a trademark on the name, but until then, "Our claims are for a common-law trademark."
Attorney Micah Goodwin, also representing the pharmacies, added that the lawsuit doesn't claim a trademark violation, but does make claims of false advertising and misleading endorsement -- though Sears said he doesn't advertise at all.
"We're not trying to keep them from doing business," Morgan said of the dispensary. "We just want them to do business under a different name."
He told the judge that Sears "could have easily Googled 'Doctor's Orders' when they set up their corporation. Our name prominently comes up."
Singleton said he didn't incorporate the name for Sears and doesn't know whether Sears searched online for the name first. But he said the name isn't unique.
He said he also doesn't understand why the pharmacies are so concerned about callers asking a question -- Do you sell medical marijuana? -- and them having to give a simple answer: No.
"Why the confusion would go so beyond that simple question and answer, I don't know," Singleton said.
He noted that the businesses operate in different counties, with different customer bases and "it's pretty straightforward ... which is doing which."
Metro on 06/06/2019