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U.S. Government Accuses Open Access Publisher of Trademark Infringement

Misleading? A federal lawyer alleges that OMICS Publishing Group has used NIH's name in erroneous ways.

OMICS Screen Capture From 9 May 2013

Submitting a paper to a new open access journal can be a risky venture: More and more companies are popping up with an offer to publish a report for a fee but deliver less than expected—sometimes they skip peer review or use editors who do no work—according to critics such as Jeffrey Beall, a University of Colorado, Denver, librarian who keeps a list of so-called predatory publishers. Now, the U.S. government has jumped in as an enforcer, warning one open access publisher to stop misusing the names of the National Institutes of Health (NIH) and the agency's employees in promotional material.

Open-access journals make articles available for free online and cover their costs by charging authors a fee. Although many open-access journals are respected, some have been accused of inviting researchers to serve as editors in name only or to submit papers that the journal publishes after little or no review, for a fee, according to recent news reports. One large open access outfit, the OMICS Publishing Group of Los Angeles and Hyderabad, India, which publishes approximately 250 journals, has also come under fire for holding conferences that advertise organizers or speakers who did not agree to be involved. (See reports by Beall and The New York Times.)

Ken Witwer, an HIV researcher at Johns Hopkins University, says he got burned last August when he presented his work at a nutrition conference sponsored by OMICS. Witwer attended partly in hopes of meeting biochemist Bruce Ames, inventor of the Ames mutagenicity test, identified in OMICS material as a speaker. Ames did not show up. Witwer says he later learned from Ames that he had never agreed to speak. In March, Witwer sent an e-mail to NIH urging it to pursue legal options against the company, which he alleged had also listed some NIH-funded scientists as editors without their knowledge. Because NIH-funded researchers sometimes use their NIH grant money to pay for conference registration and publication fees, the company indirectly receives federal funds, Witwer argued.

Witwer soon got a response. He received a copy of a letter dated 1 April from Department of Health and Human Services (HHS) senior attorney Dean Landis to OMICSonline Managing Editor Venkatesh Yanamadala alleging a trademark violation by the company's website, Landis writes: "We are aware of multiple instances where the website uses the name of the National Institutes of Health (NIH), its Institutes, PubMed Central, or the names of NIH employees in an erroneous and/or misleading manner." (ScienceInsider obtained the letter through a Freedom of Information Act request.)

Specifically, Landis charges that OMICS's site suggests that the company supplies content to PubMed Central, NIH's full text papers archive, and to PubMed, NIH's abstracts database. Landis references an e-mail sent from an NIH staffer to the OMICS group last September saying that PubMed Central will not accept any OMICS Publishing Group journals because the "[National Library of Medicine's] selection group has raised serious concerns about the publishing practices of your organization." Landis also writes that although the OMICS site identified one OMICS journal's editor-in-chief, Raymond Dionne, as scientific director of the National Institute of Nursing Research, Dionne no longer works at NIH. In addition, the letter complains that a company brochure used a photo of National Cancer Institute employee Sudhir Srivastava without his permission and attributed a comment to him that "he did not make."

Landis's letter demands of OMICS "that you cease and desist from employing our name or the name of any of our agencies institutes or employees on your website for other than true factual statements." In a subsequent letter to Witwer, NIH says it has referred the matter to the Federal Trade Commission.

OMICS has changed its website, according to a comparison with earlier versions: It has pulled down a PubMed Central logo and removed a mention of PubMed in an FAQ list. As of 9 May, however, the site has an NIH logo and the words "PubMed Indexed Articles" on the right side of the home pages of many journals (see image).

Queried about HHS's allegations, OMICS Group Managing Director Srinubabu Gedela forwarded ScienceInsider an e-mail the company received last fall from Dionne in which he agreed to serve as an OMICS editor-in-chief. Dionne was then at NIH and said he needed clearance first. In other e-mails forwarded by Gedela, Srivastava agreed to be a journal editor and conference organizer. Gedela also supplied a scanned hand-written note by Srivastava from 2010 that essentially matches his quote on the OMICS site.

Srivastava told ScienceInsider that although he wrote the note in a guestbook at an exhibit booth, he did not agree to have it used in the brochure. "I'm concerned that my name is being misused," he said. He also says that although he agreed to be an editor for OMICS's Journal of Proteomics and Bioinformatics, he has never handled any papers. Srivastava says he did not write a Wikipedia entry about himself that mentions his editor position. (According to the history included in the Wikipedia entry, it was originally written by someone from Scholars Central, an OMICS spinoff.)

Dionne, who is on detail to the Food and Drug Administration, told ScienceInsider by e-mail that he was unaware that the OMICS site describes him as a current editor-in-chief. He said he agreed to become editor after he retires from NIH in 2 weeks and had asked OMICS not to use his NIH affiliation. (ScienceInsider emailed six other NIH employees listed as OMICS editors, but only one responded, saying he agreed to serve as an OMICS editor but never reviewed any papers and now will likely step down.)

Witwer says he welcomes the HHS letter. "I'm encouraged that NIH has defended itself and the community in this way, ... and more importantly, by the decision to de-list OMICS journals," Witwer said in an e-mail. He thinks the company preys on younger scientists who are seeking speaking and editing experience.

Beall, whose online list of "predatory publishers" includes OMICS Publishing Group, said by e-mail: "I'm delighted that NIH has taken resolute action against the questionable practices of OMICS Publishing Group. I receive more complaints about OMICS' practices than I do about any other open-access publisher."