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story.lead_photo.caption The Sentinel-Record/Richard Rasmussen FIRST OF ITS KIND: Doctor’s Orders RX medical marijuana dispensary at 4897 Malvern Ave. opened Friday and made the state’s first lawful sale of the drug.

Two pharmacies that have been operating in the Pine Bluff area since 2009 under the name Doctor's Orders filed a federal trademark infringement lawsuit Thursday challenging the use of the same name by the state's first medical-marijuana dispensary, which opened May 11 in Hot Springs.

An attorney for the dispensary didn't want to comment Thursday, noting that his client hasn't yet seen the lawsuit. But correspondence between him and the attorney for the traditional pharmacies, attached to the lawsuit, indicates that the dispensary doesn't intend to back down.

Extensive publicity about the opening of the dispensary, Doctor's Orders RX, has caused the owner and operator of the existing traditional pharmacies to be "inundated" by calls from people seeking marijuana or asking why the pharmacy is now selling marijuana, the lawsuit states.

Exacerbating the matter, it says, is the fact that the dispensary, incorporated as Doctor's Orders of Garland County, uses similar red letters against a white background to advertise, "causing substantial confusion among [the traditional pharmacy's] clients and the general population."

Although medical marijuana is now legal in Arkansas, marijuana remains a Schedule 1 drug under federal law, and the Pine Bluff-area pharmacies are prohibited by federal regulations from possessing or dispensing it, the suit states.

It alleges that the confusion caused by the dispensary's "implication" that there is some connection between it and the pharmacies puts the pharmacies at risk of investigation by the Drug Enforcement Administration.

The pharmacies, which have always been known to the public as Doctor's Orders or Doctor's Orders Pharmacy, and which are licensed by the state Board of Pharmacy as Doctor's Orders Pharmacy and Doctor's Orders Pharmacy 2 are operated by White Hall Pharmacy LLC.

The lawsuit asserts that the dispensary intentionally used the name and advertising colors of the Jefferson County pharmacies to piggyback on the pharmacies' reputation.

They "are attempting to use Plaintiff's reputation in the community in order to buy credibility as a startup company," it says.

The lawsuit seeks an emergency motion for a preliminary injunction, saying "time is of the essence," and noting that the dispensary has been receiving "considerable media attention" as one of only two dispensaries currently operating within the state. The longer the dispensary continues to use the names and identifying marks by which the pharmacies are known, the suit says, "the more the public will be confused," and the pharmacies' reputation will be harmed.

The lawsuit, assigned to U.S. District Judge Kristine Baker, was filed on the pharmacies' behalf by attorneys R. Scott Morgan and Micah L. Goodwin of Little Rock. It includes a letter dated May 13 that Morgan sent to Donald Sears, owner of Doctors Orders RX Inc., asking the dispensary to "cease and desist."

It also includes a May 16 response letter from attorney Charles Singleton, on Sears' behalf, contending that the pharmacies only applied for a trademark on the name "Doctors Orders RX" on Jan. 4, while Sears incorporated his business with the secretary of state's office on May 26, 2017.

"As far as we have been able to determine," Singleton wrote, "your client never incorporated a business in Arkansas under the name Doctor's Orders RX. I understand your clients have operated in Jefferson County under the name of Doctor's Orders Pharmacy, but it is unclear whether they have used, or currently use, the name Doctor's Orders RX. In any case, we believe that Mr. Sears has a superior claim for use of the name as a result of his corporate filing."

Singleton also wrote, "At this point, my client is not inclined to change the name of his business."

The lawsuit seeks a court order requiring the dispensary to immediately stop using the name and symbols, as well as compensatory damages, "special damages that include, but are not limited [to,] lost profits, loss of business goodwill and stigma damage," and attorneys' fees.

Metro on 05/24/2019

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