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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Miles J. Jones, M.D. v. North Dakota State Board of Medical Examiners

No. 20040161 (Supreme Ct. N. Dakota, Jan. 19, 2005)

Affirming the decisions of the North Dakota State Board of Medical Examiners ("Board") and an Administrative Law Judge ("ALJ"), the North Dakota Supreme Court holds that plaintiff Miles Jones, a doctor licensed in North Dakota, violated N.D.C.C. §43-17-31(6) and (21) by issuing prescriptions, primarily for Viagra, to patients based, in many cases, solely on a lengthy questionnaire the prospective patient completed.  In reaching this result, the Court relied on estimates of both the Board and ALJ that Dr. Jones issued approximately 72 prescriptions per hour, from which they concluded "it is obvious that not much thought and attention can be given to each patient if one is reviewing 72 questionnaires per hour especially reviewing the lengthy questionnaires" at issue.  N.D.C.C. §43-17-31 permits a doctor licensed in North Dakota to be disciplined for (6) "the performance of any dishonorable, unethical or unprofessional conduct likely to deceive, defraud or  harm the public" or (21) for "a continued pattern of inappropriate care as a physician …".

The Court did reverse so much of the decision of the Board which elected to revoke Dr. Jones' license to practice medicine in North Dakota as punishment for this misconduct, because the Board failed to detail its rationale for imposing that sanction in lieu of the lesser penalties recommended by the ALJ.  The matter was remanded to the Board for further consideration concerning the proper penalty and/or a delineation of the rationale for its decision.

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