A Washington psychiatrist sued a competing nurse practitioner and her clinic for trademark infringement and misappropriation of his name and identity. Plaintiff David Penner, owner of the Olympia Center for TMS & Psychiatry in Thurston County, Washington, claimed that defendant Diana Wilcox and her competing clinic, Clear TMS+, used his registered OLYMPIA TMS trademark as a Google Ads keyword, causing his name to appear in advertisements for Clear TMS+ without his consent.
What each side asked for
Defendant moved for summary judgment on the trademark claims, arguing that plaintiff had abandoned the OLYMPIA TMS mark and that it was not entitled to protection. Plaintiff cross-moved for partial summary judgment, asking the court to rule that the mark was descriptive rather than generic, while reserving the question of secondary meaning for trial. On the name appropriation claim, plaintiff sought to hold defendant liable for the unauthorized commercial use of his name in its advertising.
The court’s bottom line
The court denied defendant’s motion for summary judgment on abandonment and ruled in plaintiff’s favor that the OLYMPIA TMS mark is descriptive. It left the question of secondary meaning, required to make a descriptive mark protectable, for the jury. On the name appropriation claim, the court allowed the claim to proceed to trial.
Abandonment: a question for the jury
On abandonment, the court found a genuine factual dispute because plaintiff presented evidence of continuous use of the mark through his website domain name, social media presence, and successive clinic names that all incorporated “Olympia” and “TMS.” The court applied the tacking doctrine, under which a trademark owner may modernize a mark over time while maintaining continuity, and concluded that a reasonable jury could find that plaintiff never truly abandoned the mark.
Descriptive, but maybe protected by secondary meaning
On descriptiveness, the court held that the mark answers the question “who are you?” rather than merely describing a category of services, placing it in the descriptive rather than generic category. Because the mark was on the USPTO’s Supplemental Register rather than the Principal Register, it carried no presumption of validity, meaning plaintiff must prove at trial that the mark has acquired secondary meaning, specifically that the public primarily associates “Olympia TMS” with plaintiff’s clinic rather than with TMS therapy as a general service.
A name used without permission
On the name appropriation issue, the court found sufficient evidence that defendant’s advertisements displayed plaintiff’s name without authorization, and determined that the number of unauthorized advertisements and the resulting damages were questions for the jury.
The question the court left open
One issue the opinion left notably unresolved is the precise mechanism by which plaintiff’s mark was allegedly infringed. The opinion indicates that defendant used “Olympia TMS clinic” as a keyword to trigger Google search advertisements, and that plaintiff’s personal name appeared in the resulting ads. But it does not clarify whether the mark itself appeared in the visible text of the ads that consumers actually saw, or whether it functioned only as a behind-the-scenes keyword trigger invisible to the public.
That distinction matters. A mark used only as a keyword trigger raises harder questions about whether consumers were ever actually exposed to it in a way that could cause confusion. The court does not engage with this threshold question.
David Penner MD PLLC v. Clear TMS+ PLLC, 2026 WL 1045235 (W.D. Wash. Apr. 17, 2026)
