He invited me to a tour of their Phoenix clinic, which opened here in north Phoenix in June, 2008, and I accepted. On April 20, 2010, I was met at Clear Choice by Dr. Daniel Galindo, the prosthodontist there.

He was cordial and helpful. I asked some direct questions. My impression was that they almost entirely did fully edentulous cases, but he showed me a number of single tooth implant cases they are doing and said that those are about half of their business. And of the edentulous cases, he said that only about half are All-On-Four. That is also contrary to the impression that I got from the complaints I’ve received.

My opposition to them softened somewhat, and I came to feel that they try to adhere to professional clinical standards. Most of the complaints I have received have been about their sales tactics and financial policies. I continue to disagree with those. But Dr. Galindo and the oral surgeon, Dr. Caesar Butura, both seemed very professional and competent.

I have heard stories of patients who have complained to their dentists about the appearance of their teeth, and the dentists have pooh-poohed their concerns, telling them that their teeth were fine. But when the smile does not appear fine to the person who is wearing it, it is not fine. Cosmetic dentists seem to be strongly tuned to listening to their patients, and this is one thing that I believe drives their passion for wanting to create beautiful smiles. They recognize that people really want this.

There are some cases, though, where even passionate cosmetic dentists would make an exception. I faced one of these early in my practice, when I had a woman who wanted me to put a gold star inlay in her front tooth. It was in late 1979, in the worst part of that recession, and I was having a very tough time getting my practice going. It was tempting to agree to do that for her, but I was concerned that it wouldn’t be a service.

Here are the relevant issues:

• It’s her smile, and she has a right to do with it what she wants.
• As a dentist, I maybe comprehend the possible compromising of the health of her teeth from this treatment better than she does.
• As a struggling new dentist, I need the money.
• I need to consider the impact on my reputation that agreeing to do this treatment might cause.
• I don’t want to offend her and possibly lose a patient, or lose the trust of a patient.

I thought carefully about it, and then I decided what felt to me was a perfect way to handle it. I told her that I had some reservations about doing the procedure, but would consider doing it if she still wanted it after six months. I felt that would give her time to reflect on doing this and to re-consider the wisdom of it. It turned out that I was right – after six months she had moved on to another fad and was no longer interested in the tooth art.

This blog sponsored by Infinity Dental Web dental internet marketing.

But, as we know, when teeth are restored, that is rarely the end of their story. She later needed these crowns replaced, so she had that done. And, it turns out that she was a strong clencher. When she was in her fifties, she broke the teeth off at the gumline. Now they needed root canal treatments, crown lengthening, and posts to help hold the teeth in. That held for a couple of years, and then they broke off again. She had moved, so she went to another dentist who did more crown lengthening. The last I heard from her, she still had some problems with these front teeth and her dentist was talking to her about having implants in the front.

I am opposed to doing front teeth that way. And here is a suggestion for dentists who are inclined to cut corners and don’t want to spend that extra time to get that perfect match of a single crown on a front tooth but don’t want to risk what happened to this woman. When you need do a single front tooth, ask your patient this question: “There are two ways I can get these front teeth to match perfectly. One would be to do two crowns. Now I charge $1000 apiece for crowns, so that would be $2000. Or, I can do one crown, and have you keep coming back to the office until we get the shade perfect, but for all that extra work, I will need to charge you $2000 for that single crown. Which would you rather do?”

I’ll guarantee you that the overwhelming majority of patients will choose to pay double for the one crown than have you cut down a perfectly healthy tooth.

But it doesn’t need to be double. When I was practicing, I told people I would need to charge 50% extra for that perfect match of a single central incisor, and every single patient willingly agreed to the extra fee, and I didn’t have to threaten to do the second crown as an alternative. This enabled me to practice conservative dentistry and to be compensated adequately for my time.

And the way I handled those appointments was, I started with the crown prep appointment. Then, when the case was back from the lab, we did a “try-in.” This was scheduled mostly with the assistant, who would remove the temporary, try on the crown with try-in paste, look at the teeth with the patient, and form an opinion. I would then come into the operatory for about five minutes while I was waiting for someone to get numb or waiting for an impression to set or something else, assess the color, take any necessary photographs to assist the lab technician, and write the prescription for the tinting that was needed. We would not schedule the appointment for the crown seat until we had a successful try-in. This kept us from wasting chair time.

As I listened and watched, I learned that the appliance could be made and fitted within 2 dental visits, and that the procedure is painless, because there is no grinding, drilling or shots involved. What was also mentioned is that the appliance is perfect for special occasions, or it can even be worn daily. I got a little chuckle out of watching this infomercial, because what this appliance reminds me of compares to someone who is bald or has thinning hair and gets fitted for a wig.  Is Snap-on Smile just another temporary quick fix, or is it a good alternative over permanent procedures that involve cosmetic dentistry?   

Watch this infomercial for yourself, and tell me what you think.
Snap-on Smile Commercial Infomercial, As Seen On TV Flix, Television Infomercials and Commercials2

On April 15, 2010, I received a call from Denver, from Stephen Boyd, the CEO of Clear Choice, with a different approach. He was concerned about the posting of complaints. But rather than being confrontational, he was friendly. He talked about some things that we had in common, and went on to explain the philosophy under which his company operated, and then offered to me a tour of their Phoenix facility by one of the two dentists there.

It was interesting, because they had clearly been talking about me at their headquarters, wondering how to handle the complaints I was posting, and he had done some research into my background.

When I got through with the phone call, I reflected on the wisdom of his approach. I am not one who responds to intimidation. It arouses my suspicions and steels my resolve to uncover the corruption that intimidation tactics try to conceal. It’s much better to just discuss difference in ideas and ideals, and often some understanding can be reached.

I disagree with Clear Choice’s approach. But after talking with Mr. Boyd, I feel less antagonistic about those disagreements. They tend to recommend that a patient have all remaining teeth extracted and then have the All-on-4 technique to anchor an implant overdenture. I would encourage a patient to save as many teeth as they can. Mr. Boyd said that often, when that is done, the patient has to come back in a few years and have those teeth extracted. With the Clear Choice approach, he said, they have the one procedure and they are hopefully done for life. Okay, I can understand that. I disagree, but I understand.

I decided to take him up on his offer to take a tour of their Phoenix facility. Stay tuned for another blog posting where I report on that tour.

- David Hall

Beginning in April, 2009, I began posting complaints from patients of Clear Choice Dental Implants Centers, a nationwide chain of dental implants clinics. I had installed a form on my website that solicited these complaints. This attracted the attention of the Clear Choice people, and on September 16, 2009, an attorney from Dallas representing the company sent me a threatening letter. The letter said, in part, “…by deceptively pretending to take a survey when, in fact, you are just gathering names and information for marketing purposes in connection with your website www.infinitydentalweb.com, your website violates the Lanham Act, 15 U.S.C. § 1051, et seq., and Federal Trade Commission Act and state laws regarding unfair and deceptive advertising …” They made the following demand: “Demand is hereby made that within sever (7) days from the date hereof, you cease and ddesist from soliciting private information regarding our dustomers and deceptively gathering information from ClearChoice customers under the pretense of taking a survey. Should you fail to comply with our demand we will have no alternative but to pursue all legal remedies against you.”

They send this letter via express courier and fax.

I responded by regular mail and by fax and said the following, in a letter dated September 17, 2009:

“I had thought that our website was clear in indicating that we were seeking comments about Clear Choice Dental Implants Centers from people who had visited your centers for the purpose of advising other visitors to our website of what they could expect from Clear Choice. But, reading your fax, it appears that this purpose was not clear to you.

“Accordingly I have revised the page where we solicit comments about Clear Choice to make that more clear.

“Thank you for bringing this to our attention.”

I was also using some of the complaints we had received and posted them on the websites of two of our clients, and both of those clients got threatening letters from the attorney alleging trademark infringement. So I posted a comment on my blog about these threats. I titled the post, “Is Clear Choice attempting to silence complaints?” In the post I said:

“I believe that Clear Choice and their attorneys know full well that such claims of trademark infringement are bogus. Trademark law specifically allows for the use of a competitor’s trademark in comparative advertising or for the purposes of news commentary or criticism. I also believe they know that many dentists will simply agree to their illegal demands to avoid a possible legal battle, and that this will silence criticism.”

Later on in the post, I further referenced these letters with this comment: “We have this legal bullying tactic, which I associate with enterprises that feel they can’t stand reasonable scrutiny.”

While both clients decided they didn’t want to risk a legal fight with Clear Choice, I pressed on with my own blogging strategy and continued to solicit comments. I did get some positive comments which I posted also. I didn’t hear anything more from Clear Choice until April 15, 2010, when I got a call from the Clear Choice CEO in Denver. Stay tuned to this blog, where I will report on that phone call and a subsequent tour of their Phoenix facility.

The dentist with whom I was having lunch restores a lot of dental implants and doesn’t like the All-on-4 technique. He feels there is too high a risk of implant failure. He was also personally acquainted with Dr. Palo Malo, saying that he was a very engaging individual. He mentioned that on one occasion, over a couple of drinks of wine and a discussion of the risks of his procedure, Dr. Malo had confessed to him, “I’m a businessman.” He then explained that the driving force pushing the All-on-4 technique was patients’ fears of bone grafting. I understood, from the comments, that Dr. Malo recognized the potential increased risk of his procedure, but that it was a way to get a reluctant patient into dental implants who might not otherwise do them.

I know there are some dentists who would object to those ethics. They feel that you should always do optimum treatment for the patient. I don’t object, with one important clarification, and that is that the dentist is absolutely honest with the patient. If the patient makes the informed decision to bear the increased risk because of fear of the bone grafting surgery, that is the patient’s choice, and the practitioner should make that available.

I wonder if I’ll get any comments on this. Comments are open for two days. If you find this post after comments are closed, please visit our “make a comment” page.

We had four of our clients who received threatening letters from Den-Mat attorneys, because we had Lumineers pages on their websites but they were not doing Lumineers. We advised the clients that they were within their legal rights to make comparative references to Lumineers, and we felt confident the Lumineers lawyers realized that their threats were just bluster, but that we couldn’t guarantee that there wouldn’t be an actual suit filed. A couple clients backed down and had us alter their websites. One client decided to stick to his guns and slug it out with Den-Mat. Here are excerpts from the exchange of letters Dr. Jay Goldstein had with a Den-Mat attorney.

In their letter of December 12, 2007, which was sent via certified mail, they stated:

“We have recently noticed that you are using our client’s LUMINEERS® mark without our client’s permission. Using LUMINEERS® is a direct and intentional infringement of our client’s trademark rights …. Your statements are false, misleading and extremely damaging to the reputation and significan goodwill that our client has built up in its well known mark.

“Therefore, we hereby demand that you immediately cease and desist further use of our client’s LUMINEERS® mark in any manner.”

We drafted a proposed letter of response, which Dr. Goldstein sent to the attorneys. Here are a couple of excerpts from that letter:

“I am anxious to comply with all trademark and other laws, but I need clarification of your request, because the letter contains some confusing statements that make it difficult to comply while maintaining my own rights under the law.

“Your letter demands that I not make any reference to Lumineers®. I need clarification of this request. Are you alleging that trademark law prohibits anyone other than the trademark owner from mentioning a trademarked product?”

Further down in the letter, he states:

“We had worded the page in question very carefully to make it clear that Lumineers® is a particular brand of porcelain and that I have not yet placed Lumineers® but intend to in the future. These statements are all true. However, in your letter you allege that ‘consumers will reasonably believe that you are either offering Lumineers® or that you are somehow affiliated with or sponsored by Den-Mat.’ You further allege that statements on the web page are false and misleading. Could you be more specific as to that allegation? We are not aware of anything false or misleading that is posted on this page. It appears that we were sent a form letter that is not based on a careful reading of the web page. And could you explain how there could be consumer confusion when the page clearly identifies Lumineers® as a trademarked brand of porcelain, states twice that we have not yet placed any, and contains a specific disclaimer that Den-Mat does not endorse this page, nor is it affiliated with Dr. Goldstein? In what way do you allege that consumers will be confused?”

Three weeks later, the attorney sent a letter in response to this letter in which he continued to insist that Dr. Goldstein was infringing on Den-Mat’s trademark and demanded that he “immediately cease and desist your use of our client’s mark and provide us with your written assurance of same by no later than January 25, 2008.”

We ignored that letter and only made a slight change to the website to clarify that Den-Mat had the right to not permit Dr. Goldstein to use Lumineers. We did not hear from Den-Mat or its attorneys again. And Dr. Goldstein continues to rank #2 when searching for “Cleveland Lumineers.”

If you look up the page, you will notice that indeed it is clear in stating that Dr. Goldstein hasn’t placed any Lumineers and has not attended their certification course, but that he has used a “no-preparation” technique with other brands of porcelain. So there is no trademark infringement. We mention in an earlier post about trademark law that the Lanham Act permits comparative advertising where you mention how your product or service differs from the trademarked product or service.

Now Dr. Goldstein can’t identify any patient who has come to him drawn in by searching for “Cleveland Lumineers,” but at a minimum he has educated his website visitors and made them more informed dental consumers.

As a background, I spent seven years running a small book publishing company, and there I needed a strong background in intellectual property law. I read a couple of books on the subject by prominent intellectual property law attorneys, and had two or three courses that I took on this. So I feel that I have a pretty good handle on the legal ramifications of trademark law as it applies to marketing.

The Lanham Act, passed by Congress in 1946 and amended since then, forms the statutory authority behind United States trademark law. It provides for federal registration of trademarks and specifies remedies when a trademark is infringed. Its purpose is to protect a company’s investment in the advertising and promotion of its brand, and the establishment of its reputation.

For example, take the brand Outback Steakhouse. They have a trademarked name and logo. The logo consists of the word “Outback” written in all caps, in a rustic font, with the sketch of a mountain range above it. Below is the word “Steakhouse” written in the same rustic font, in all caps, in smaller letters. Let’s say you open a restaurant, and you decide to call it the “Outback Restaurant.” You may think you are clever, and will cash in on the reputation that Outback Steakhouses has established and lure people into your restaurant. But you may well be found in violation of trademark law, if a judge can be convinced that your name is sufficiently similar to theirs so that prospective customers will confuse your restaurant with the Outback Steakhouse.

So the guiding principle I like to emphasize to our clients is that you can’t confuse the public.

We have clients who use techniques or products that are similar to heavily marketed products and techniques and who want to use those well-known trademarks in their advertising. For example, we have clients who use the ClearCorrect invisible braces system who want to advertise it as Invisalign, because people recognize that name. When we do this in websites, Infinity Dental Web is always careful to make it clear, on the page promoting this service, that what the dentist is offering is not the popular trademarked brand. You can reference Invisalign, but you have to be clear that you are not delivering Invisalign.

Here is the applicable provision of the Lanham Act:
(4) The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

So what we do on these pages is we may reference Invisalign, state that this dentist does not use Invisalign but uses ClearCorrect, and then state the reason the dentist prefers ClearCorrect – e.g. it is less expensive. That is fair and that is legal.