This article has been edited to incorporate additional reporting.
The Arizona-based maker of the popular transparent alternative to braces called Invisalign has filed a multimillion-dollar lawsuit against Lake Oswego orthodontist Bill Dischinger, who's become a prominent marketing ally for one of its competitors.
The suit, filed in U.S. District Court in Portland by Arizona-based Align Technology earlier this week, accuses Dischinger and his firm, Dischinger Orthodontics, of “unlawfully using its federally registered and famous Invisalign® trademarks to pass off other clear aligner systems as if they are Align’s, or as if they are affiliated with or sponsored by Align.”
The case is noteworthy in that it highlights the role of paid so-called thought leaders, providers who receive payments from manufacturers as they help sell drugs or devices. Controversy over them extends even to orthodontists, where critics say the company-paid providers use training to promote products in ways that may undermine care.
While the issue of outside payments to providers is not new, it is unusual for a company to sue a competitor’s paid thought leader in federal court. The suit is also notable for its size. It seeks to force Dischinger to hand over estimated profits of more than $7 million plus triple that amount in damages, in addition to attorney fees and punitive damages.
Asked about the suit, Dischinger told The Lund Report in an email that he’s not sure why the firm is suing him, as he does treat Invisalign users who come to him from other providers. He said his website’s prominent use of the Invisalign brand name is justified.
“I do know that for providers such as myself that primarily use another product, Align feels any use of their name shouldn’t be done,” he wrote. “I can absolutely say there is no deception… I don’t know why a lawsuit was filed when no communication had been given to me about their concerns.”
The suit comes as Ormco, maker of a brand called Spark, tries to make inroads in the market dominance enjoyed by Invisalign in the realm of aligners, clear plastic alternatives to braces that have become increasingly popular.
Dischinger has been an ally of Ormco’s efforts to gain market share, providing testimonials and accepting payments by the company to speak at orthodontist conventions. He’s also posted online about his preference for Spark.
“I do know that for providers such as myself that primarily use another product, Align feels any use of their name shouldn’t be done. I can absolutely say there is no deception… I don’t know why a lawsuit was filed when no communication had been given to me about their concerns.”
Suit claims misuse of trademark
Central among the suit’s claims is that Dischinger used the Invisalign name to sell other products.
Dischinger’s website described Spark products using the Invisalign name, the suit claimed, saying he was “offering ‘Invisalign® Spark Clear Aligners’ and ‘Invisalign® Teen Spark Clear Aligners,’ products that do not exist.”
According to the suit, “once they have enticed prospective patients to their offices using the Invisalign® and Invisalign Teen® trademarks, (Dischinger and his company) then do a bait-and-switch, substituting Spark clear aligners from Ormco Corporation.”
It claims that Dischinger and his firm are “misleading patients into believing that the ‘Spark’ aligners that they offer are associated, affiliated, or sponsored by Align and related to the INVISALIGN brand, thus passing off another, unrelated, clear aligner brand to consumers as though it were Align’s.”
The suit indicates the scrutiny applied to Dischinger by Align and its lawyers went well beyond his website, tracking his business practices, interviews posted online, podcasts, as well as public testimonials. Dischinger had not ordered a product from the firm since 2020, the only time he did so that year.
Additionally, the suit cites his past statements that he switched over to using Spark in 2018, having done a clinical trial for Ormco before the company launched Spark early in 2019.
Included in the suit is a picture from Instagram showing Dischinger thanking Ormco for hosting a dinner to commemorate him doing 1,000 Spark cases.
It even cites his presentation two days before the lawsuit was filed, at a May 5, 2024 orthodontists’ professional association meeting in Louisiana.
“In response to a question from an audience member, Dr. Dischinger stated that he does ‘zero’ Invisalign® cases and instead treats patients with Spark,” according to the suit. “As part of his response, Dr. Dischinger also made a hand gesture to indicate ‘zero.’”
To bolster its claim that Dischinger was using Invisalign to generate business, the suit cites an interview of Dischinger posted online saying that marketing by clear aligner companies have helped orthodontists’ business.
“The marketing dollars that those [clear aligner] companies are spending absolutely help us. I mean, they’re … marketing for us, you know, they’re spending the marketing dollars that we don’t have to, which is great,” he said in the interview.
“In response to a question from an audience member, Dr. Dischinger stated that he does ‘zero’ Invisalign® cases and instead treats patients with Spark. As part of his response, Dr. Dischinger also made a hand gesture to indicate ‘zero.’”
Payments cited
Citing payment data posted by the federal government, the suit claims Ormco has given Dischinger nearly $1.2 million for speaking and consulting between 2016 and 2022 as a “key opinion leader.”
The figure does not include earlier payments documented by national investigative journalism nonprofit ProPublica.
Dischinger, for his part, wrote in an email to The Lund Report that the $1.2 million was misleading because part of it represented discounts the company gives to large-volume users of its product.
In a 2016 Portland Business Journal article highlighting payments received by Oregon providers, Dischinger also described selling a patented device to Ormco, generating some of the firm’s payments to him.
Asked by The Lund Report if, besides discounts and the dinner for 1,000 patients served, he received any other financial benefits for the volume of work he did with Spark, Dischinger declined to answer.
Outside payments by manufacturers to providers who use their products have been controversial, and critics have argued that providers should disclose them to patients due to the potential that they influence treatment decisions. Even in orthodontics, some feel those receiving payments should declare a conflict of interest when promoting a product.
More than a decade ago the Oregon Department of Justice sued two Salem cardiologists for “concealing” from patients the payments they’d received from medical device company Biotronik in connection with heart implants.
Dischinger’s website does not appear to disclose his relationship with Ormco.
Asked if he discloses his relationship with the firm to patients directly, or thinks providers should do so, he declined to answer other than to say he felt the debate had been settled by the Sunshine Act, a federal law that requires makers of medical devices and drug manufacturers to disclose certain payments to providers, while establishing a website where the public can find them.
“The Sunshine Act addressed the questions you ask and that is why it was put into place,” he wrote in an email.
