Harvard Seeks to Move Lawsuit to Federal Court

The University has asked that its dispute with the state-appointed managers of Harvard Pilgrim Health Care be moved from state to federal court, Harvard officials said yesterday.

A lawsuit was filed late last month by the state on behalf of Harvard Pilgrim after Provost Harvey V. Fineberg '67 sent Mass. Attorney General Thomas F. Reilly a letter arguing that the University has a right to decide whether the debt-ridden health maintenance organization (HMO) can use the Harvard name.

The state took control of the HMO earlier this year, following losses of nearly $200 million in 1999.

"Harvard University asserts its rights to use of its name by Harvard Pilgrim or by any successor," the letter read.

In a letter to Reilly yesterday, Fineberg wrote that "facing a court deadline, we removed the case to federal court, which has exclusive jurisdiction over trademark disputes in interstate commerce."

Brian Heffron, Reilly's press secretary, said the attorney general's office is reviewing the matter.

"We are surprised and disappointed that the University did not feel it could receive a fair hearing on this issue in front of our state's highest court," Heffron said.

The University and the health care company have no official ties, although Robert H. Ebert, then-dean of Harvard Medical School, persuaded the University to lend its name to Harvard Pilgrim when it was created in 1969.

"It was a community service," Fineberg said yesterday. "That kind of public gesture shouldn't be abused."

Fineberg added that the University does not want to remove the name or to collect fees from it. However, the current arrangement is an "implied license," he said.

"Our lawyers see that as the University has rights to protect its name," he said. "We want an explicit license. We think that both parties could benefit from that type of clarity, especially at no cost [to Harvard Pilgrim]."

The move to federal court is "the best way to defend ourselves," he added.

In considering options to save the beleaguered HMO, state-appointed receivers, including Reilly, considered making the plan for-profit. While this option was not chosen, it remains a real possibility if Pilgrim faces future financial troubles.

In the letter, Fineberg wrote that "the assertion that the Harvard name is an asset of Harvard Pilgrim that could be sold at will is a new and particular concern for us."

But in their lawsuit, the state argues that Harvard Pilgrim has used the name for decades without objection.

"By the use of the word 'Harvard' in connection with health care coverage and services for over thirty years, Harvard Pilgrim has obtained common law rights in the word 'Harvard' in connection with health care coverage and services," the state's complaint reads.

Harvard officials had previously questioned whether the attorney general read too much into Fineberg's letter.

University spokesperson Joe Wrinn has said Fineberg's letter was meant to initiate a discussion about the most appropriate way to use the Harvard name, if it is used at all.

"We're appealing to return to negotiations," Fineberg said yesterday. "The attorney general filed suit against us, not us against them."

"We had hoped to continue our discussions with Harvard Pilgrim, but they were interrupted by [the state taking control] and by the initiation of your lawsuit," yesterday's letter read. "Following your announcement that your office would petition to take Harvard Pilgrim out of receivership, the University asked if the suit could be dismissed so that we could return to the negotiations; that proposal was declined."

"These negotiations were prompted by our concern that Harvard Pilgrim was filing applications for federal trademark registration for marks including 'Harvard,'" another section of the letter read.

According to Fineberg, HPHC first attempted to register trademarks about 18 months ago. He added that Harvard, particularly the Medical School, has trademark interests in the health care field.

According to Wrinn, the University has become more stringent in regulating the Harvard name since Harvard Pilgrim was founded.

"We think it's responsible for us to remind the people involved that we believe we own the use of the Harvard name and how it relates to teaching and research and medical education," Wrinn said in an earlier interview.

Harvard Pilgrim has 1.1 million members, including more than 5,000 Harvard employees and their dependents, Fineberg noted in his letter.

Erica B. Levy and Joyce K. McIntyre contributed to the reporting of this story.