10:36am PT by Eriq Gardner
Lawsuit Filed Over Ads on 'The Rush Limbaugh Show'
Dozens of advertisers continue to flee The Rush Limbaugh Show, but one company that hasn't paid for any commercials on the controversial program is proving just how toxic it is to be associated with Rush Limbaugh these days.
On Wednesday, Humana, a Kentucky-based health care company, sued the Preval Group, the marketeer of pills that purportedly boost memory. One of Humana's subsidiaries is Concentra Health Services. Preval sells its pills on the market as "Concentra" and is one of Limbaugh's advertisers. Is there such thing as aggravated trademark infringement by way of Limbaugh? Humana seems to be pushing that case.
Limbaugh, of course, got into hot water when he said nasty things about a Georgetown law student who defended the Obama administration's policies on insurance-funded contraception. The radio host called her a "slut" and demanded to know why taxpayers should have to pay for her sexual activity.
In the latest lawsuit, Humana in turn wants to know why it should be forced to pay the consequences when another company is using its trademark on Limbaugh's show. Humana and Preval have been at odds over "Concentra" for many months, but it was the pill-marketer's recent Limbaugh advertising that prompted Humana to remember that it was time to file a lawsuit.
According to the complaint filed in Kentucky federal court, Humana says that Preval's ads for "Concentra" this past Monday caused customers across the nation to call its call center, visit its website and take to Twitter and Facebook to complain about Humana's advertising on The Rush Limbaugh Show.
By picking this week to be on Limbaugh's show, Preval is alleged to have made the trademark infringement even more egregious. "Preval knew that its advertisements on the Limbaugh show would garner widespread attention at a time when this show and the placement of advertisements thereon were a national controversy widely discussed in the media," says the company's complaint.
The health care company says that Preval's acts have caused significant harm to the company and its goodwill and reputation. It quotes messages from customers such as the following:
"As a healthcare executive who oversees organizations that literally make thousands of referrals for OT/PT a year, I can tell you that so long as you continue to advertise on Rush Limbaugh's show, your facilities will receive absolutely no referrals from me or any of the entities I manage...I have made my position known throughout the healthcare community and I assure you that your continued support of such insanity will negatively impact your bottom-line."
In trademark infringement cases, plaintiffs typically struggle to show trademark dilution and prove damages, often taking consumer surveys to get there. In rare instances, successful plaintiffs are entitled to treble damages in cases of gross negligence and a showing of defendant's willfullness.
That's what Humana is now seeking over Preval's alleged "willful and egregious" conduct. The healthcare company also requests an injunction.
For its part, Preval is apologizing for the mess. The Maine-based company's attorney told a local newspaper that the two parties have been trying to resolve the issue for some time and that Preval "is certainly sorry for any embarrassment that the other Concentra might have suffered," adding that no more commercials are scheduled to air on the Limbaugh show.