The Hypnobirthing Argument.
This is one for fellow therapists and colleagues who practice or offer any form of “Natural Childbirth” with their clients. There has, for some time, been intense argument of the use of the word “hypnobirthing” to the point of a certain practitioners threatening letters to those who persisted using the term in literature and on websites. In essence, this practitioner would have you believe that she had registrations on the word in both the USA and UK, indeed worldwide and nobody else was allowed to use it at risk of legal prosecution.
I trained in easibirthing®, developed by Sharon Mustard, a far more permissive method reflecting UK birthing practices. A fellow student of Sharon’s was that annoyed by this practitioner’s attempt at placing a stranglehold on the term “hypnobirthing” that he did a lot of research into the matter, the results of which are below:
The transcript below is attributable to the research of Archie McIntyre (firstname.lastname@example.org) and these are his words. Thanks must go to Archie for taking the time to research what has become an extremely thorny issue. Thanks also Katherine Graves at The Hypnobirthing Centre for assisting me in attributing this informative piece to the right person.
Essentially nobody has a legal right to the Hypnobirthing term in any form outside of the USA, and only in a particular stylised form within the USA, read on.
I am glad the news is circulating that outside of the US, there is no registered trademark on the term Hypnobirthing in any form. The only thing which was a successful application in the UK was the Logo (http://www.ipo.gov.uk/t-find-number?detailsrequested=C&trademark=2535510). The term Hypnobirthing was examined and refused trademark status on the grounds that it was a generic term used by the general public for the application of hypnosis for childbirth (http://www.ipo.gov.uk/t-find-number?detailsrequested=C&trademark=2534408).
Please feel free to pass these links onto other practitioners to reassure them that Marie Mongan has no intellectual property rights to the term in the UK in any form!
The truth behind Mongan’s constant claim that she owns the word ‘hypnobirthing’ in the USA and the completely unwarranted ‘cease and desist’ letters she sends out to threaten people successfully without any legal basis whatsoever.
Here are the website addresses of the relevant pages for Mongan’s USA registration of the word ‘HypnoBirthing” (sic) in the stylized form only, and the page for the entire comments on the case she lost comprehensively, including the Judge’s Order and remarks. It is a damning indictment of Mongan’s assertions and well worth passing on as widely as possible within the hypnobirthing community. It makes it crystal clear that Mongan and her acolytes are lying through their teeth (there is no other phrase that covers the matter) when they state or even infer that nobody in the USA (or indeed anywhere in the world) may use the word ‘hypnobirthing’ without Mongan’s permission. It should be pointed out that even the stylized form of “HypnoBirthing” may be freely used anywhere in the world other than the USA for it is not registered in any other country.
Anybody in the USA may use any spelling or presentation they wish of the word ‘hypnobirthing’ (i.e. Hypnobirthing, hypnobirthing, HYPNOBIRTHING, HYPNObirthing or any combination desired other than the registered stylized one using a capital H and B (HypnoBirthing). As you will see from the New Hampshire Court transcript, Judge McAuliffe threatened to take even that away from Mongan under 15 U.S.C. if she did not drop her case against Michelle LeClaire O’Neill – which she then did swiftly. Mongan has since then promoted the idea that apart from her only Michelle LeClaire O’Neill may use the word (though even she may not use it in the stylized form) and this is very clever for it makes apparent logic since they both claim to have originated the word and sounds like a reasonable outcome of a dispute. So this has allowed her to get away with the impression that apart from Michelle she does indeed control the word. This, however, is completely false, for whilst Michelle may indeed use any non-stylized version of the word she wants, so may any other practitioner in the USA as a result of Judge McAuliffe’s statement and the termination of the case. Mongan of course keeps this very quiet.
A close reading of the transcript will show that the judge said the conjunction of two common words (hypnosis and birth) does not make the new compound word ‘hypnobirthing’ open to become the property of any single person, so it remains in common free usage. He also states clearly that Mongan seeks but has no right to “corner the market” (Judge McAuliffe’s precise words) in hypnobirthing; nor does she have exclusive rights to the word or the practise of hypnobirthing; so anybody may say they practise hypnobirthing provided they use the un-styalized form which is registered. Judge McAuliffe’s exact words, as you may read in the website below are ” . . it would seem, legally, that anyone who teaches birthing methods that employ hypnosis to aid in pain reduction has the right to call the process “hypnobirthing”. Nothing could be clearer than that. Mongan wisely did not challenge that statement, but abandoned her case, so the statement stands.
Furthermore the Judge stated that there is no unarguable evidence as to who precisely first used the word (in her testimony, Michelle O’Neill asserted that the word was already “generic” and not open to ownership, as the Judge points out) or employed the practise and that therefore both are free for all to use, apart from Mongan’s registered stylized version of the word.
All this is disregarded by Mongan and her acolytes who constantly give the impression that both the word and the practise of hypnobirthing are owned by Mongan, and may only be used by members of her group and with her permission. This is untrue as is made crystal clear by Judge McAuliffe in his ORDER; yet this false position is constantly backed up by threats and letters to ‘cease and desist’ which as I say above have no weight in law whatsoever.
The relevant US Patent Office website addresses are:
http://tess2.uspto.gov/ showing Mongan’s registration is stylized only. When the page opens, go to ‘Select A Search Option’ and immediately under it, click on ‘Basic Word Mark Search (New User)’; on the next page in the ‘Search Term’ field enter the word ‘hypnobirthing’ and click on ‘Submit Query’; you will come to a new page showing three Records. Click on the middle one (the only one showing as Live, and it will take you to the actual registration. You will note in ‘Mark Drawing Code’ which defines how the word is registered that it states “IN STYLIZED FORM” and that is the only form (with capitals H and B) that is registered. Any other form is freely open for use to all in the USA, and all forms including the stylized one are open for free use in any other country in the world.
http://ttabvue.uspto.gov/ttabvue/v?pno=92032066&pty=CAN&eno=17 giving Judge McAuliffes’ complete ORDER dismissing Mongan’s application for summary judgement and advising her to withdraw or lose both the entire case and her registration of even the stylised form of HypnoBirthing. Mongan immediately withdrew and abandoned her case. She now only owns the stylized form and any or all other forms of the word are open for free use in the USA. It is worth reading this entire document in detail as much emerges – none to the credit of Mongan. Judge McAuliffe went on to become a Federal Judge and Senior Judge of New Hampshire, so he is no ordinary legal individual.
It is time that hypnobirthers in the USA came out from under the shell of fear that Mongan has created and started practising openly as hypnobirthers as they are fully legally entitled to do. The response to any ‘cease and desist’ letter on behalf of Mongan or her institute should be met with a “Get Lost” letter quoting the above websites and relevant passages from them, and inviting her to take action. She knows she will lose and be left with the costs of both sides and that will be that – so she will do nothing for she will lose. Once this happens a few times and she realises that the game is up she will doubtless stop this disgraceful threatening nonsense and the world of hypnobirthing can open up as Judge McAuliffe has says it may, and her attempt at “cornering the market” (Judge McAuliffe’s words) will be over, as he stated she has no such right.
Mongan has clearly based her unfounded claims and threatening letters on the belief (true up till now) that nobody knew the facts of the case. That has worked well for her and would doubtless have remained the case had she not taken action against me. In order to defend my position I did huge amounts of research and came up with these official US Government websites that reveal the truth. If Mongan had left me alone it would all still be unknown, so she has brought this upon herself.
The more widely this knowledge is spread the better, for all the practitioners and more importantly the mothers-to-be they can help, throughout the USA.
In my opinion this is a typical example of a therapist who has lost sight of what we are here for; To assist our clients address their issues in the best way we can and foster a better quality of life free from those issues. Argument and in-fighting like this can only damage the profession as a whole and I sincerely wish that the above now puts this long raging argument to bed so we can all get on with what we’re supposed to be doing, i.e. helping the client!