Two dental practices doing business in Texas as Kool Smiles and a related support company have filed a lawsuit against a San Antonio law firm alleging they were harmed by information the defendants disseminated on a website and in television and radio ads.
The lawsuit was filed March 19 in U.S. District Court for the Southern District of Texas Laredo Division on behalf of Dentistry of Brownsville, KS2TX, and NCDR, a Georgia company that provides staffing and support for group dental practices.
The complaint charges the law firm of Mauzé & Bagby and partners George Watts Mauzé II and James Thomas Bagby III with defamation, business disparagement, trademark infringement, false advertising, cyberpiracy prevention (anti-cybersquatting), injury to business reputation, and trademark dilution.
Beginning on February 4, 2012, the defendants published a website "soliciting potential legal claims from Kool Smiles customers relating to pediatric dental services provided by Kool Smiles," according to the complaint. In addition, on the website the defendants allegedly made "false and unsubstantiated representations," including asking readers if their children had been "strapped down to a papoose board?" were "upset, crying, terrified, or traumatized" or had a "mouthful of stainless steel crowns," among other things.
"The questions presented on the website implied that all of these activities happen with regularity at Kool Smiles," the lawsuit states. "Further, these comments on the website misled some into the concern or belief that there were problems with the quality of the dental care that Kool Smiles provided. Without any substantiation of their claims, defendants' questions deliberately misled the public by unfairly casting Kool Smiles and its provision of dental services in an unfavorable light."
The plaintiffs also claim there are statements on the website that imply Kool Smiles is involved in Medicaid fraud.
"The proximity of these statements alleging that dental clinics serving children are engaged in Medicaid fraud to a description of Kool Smiles and its Medicaid reimbursements clearly indicates that Kool Smiles obtained its reimbursements by exploiting children to increase its revenue," the lawsuit states. "The accusation of Medicaid fraud, particularly when these comments appear on a website generally attacking Kool Smiles, is even more evident. The implication that Kool Smiles engages in Medicaid fraud in Texas is false, misleading to the public, and has harmed Kool Smiles."
In addition, on February 6, the defendants began running television and radio ads soliciting claims from Kool Smiles customers, according to the complaint. The plaintiffs allege that, as a result of the advertisements and website content, Kool Smiles began receiving telephone calls from "concerned patients" and a significant number canceled or failed to appear for appointments, leading to a "consequent and substantial loss of revenue and profits."
The plaintiffs seek a permanent injunction to stop Mauzé & Bagby from using the Kool Smiles name or related marks in TV, radio, or Internet ads; from registering or using the name Kool Smiles or related marks in a domain name; and from making false and defamatory statements about Kool Smiles. They also seek unspecified actual, punitive, and special damages from the defendants, along with costs and attorneys' fees.
