More Disputes Over Trademarked Area Codes. Why Is This Allowed Again?

from the mine-mine-mine dept

There are plenty of times when I have questioned why something that the USPTO granted a trademark on should be allowed to be registered at all. But one example that flummoxes me the most is that you can go out there and trademark area codes. You don’t hear about this all that much, but AB InBev made this somewhat famous when it acquired Chicago’s Goose Island Brewing, including the trademark for its “312” brand of beer, and proceeded to file for trademarks on allllllll kinds of area codes.

Why? Why can a company lock up an identifier for a geographic region in any market designation? The answer according to some is that the USPTO has decided that area codes aren’t purely geographic descriptions.

If consumers encounter an area code being used as a trademark, will consumers likely think that product comes from the region identified by the code, or will it be viewed as a tribute to the region?   Perhaps we’ll see if A-B expands its use of area codes. The USPTO generally does not consider area codes to be merely geographically descriptive and thus area codes used as trademarks are registrable without a showing of acquired distinctiveness.

Someone is going to have to explain this to me. Go throw the term “area code” into Google. The returning results will be of one or two categories. Either you will get a link to a series of tables that match a given area code with a state, city, or county, or you will get an actual map showing where specific area codes lie in different regions. Both of those things are denoting geographic reasons. The area code has the word area in it. What the absolute hell is the USPTO talking about?

Because this is still causing problems with some individuals using area code marks to bully everyone else.

Fred Gillich, the owner of Too Much Metal and 414 Milwaukee, started his 414 brand in 2012. His stylized version of the area code appears on T-shirts, hats, glassware and flags – one of which hung from City Hall last spring. Beard MKE, a local retail company, partnered with Cream City Print Lounge, also Milwaukee-based, to create a “414 All” shirt to benefit the Cream City Foundation that works to protect the rights of the LGBTQ+ community.

Gillich sent Beard MKE a cease and desist letter earlier this month, and was not satisfied with the company’s response. And so he went to social media and made a post calling out Beard MKE for using the 414 area code on a shirt with the image below.

The response to Gillich attempting to publicly shame another group that was handing proceeds from merch sales bearing the “414” area code to charity was almost universally negative. Comments from legal experts mostly amounted to: “Yeah, the USPTO gave him the mark, so he can bully whoever he wants over it.” As though nobody can get to the next logical question, which is to ask why this is allowed at all? The mark is so broad, and so tied to a geographic region, it serves as the source identifier of nothing at all, save maybe an entire region.

And Gillich has made a habit of this sort of thing.

“This is not the first time he’s done this to a small business and no one has the time or the money for legal support,” says Crosby.

Gillich says he just wants companies to partner with him rather than use the trademarked 414 without permission.

“I survive on my creativity and when I see it being appropriated, the question becomes who’s hurting whose small business?” says Gillich. “I am protecting my livelihood.”

Ah, yes, the creativity of noticing that you live in a certain area code and then trademarking it. Hey, USPTO, bang up job here, fellas.

Filed Under: , , ,
Companies: 414 milwaukee, beard mke, cream city foundation, cream city print lounge, too much metal

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Comments on “More Disputes Over Trademarked Area Codes. Why Is This Allowed Again?”

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35 Comments
This comment has been deemed insightful by the community.
Ehud Gavron (profile) says:

NPA

The North American Numbering Plan (NANP) allows for the assignment of Number Plan Areas (NPAs) which are colloquially called "area codes". Except they’re not area code. Between "splits" and "overlays" they are now exactly as intended — numbering plan areas.

This doesn’t change the gist of the argument. Whatever you call them, they are unique numerical codes used to direct calls to that NPA.

There is no "confusions of consumers" between an NPA and a product named for the NPA of one of its phone numbers. It is also … short sighted… says me… to name your business after an NPA that will possibly be split/overlayed with another NPA in the same area.

For example: 404. That’s Atlanta, or an HTTP error code (page not found). 678? What’s that? Oh that’s Atlanta also. If there was a 404-Brewery that moved two streets over and tried to get a new number it would likely by a (678) NPA ("Area Code"). No consumer confusion there.

There are 10,000 numbers per NPA… and some of those won’t exist because they are reserved (e.g. "(NPA)555-xxxx) and (NPA)0xx-xxxx, and (NPA)911-oxxx) but none of those are business designators.

Our USPTO is "confused" and it will take congressional action, IG action, or a lawsuit to correct.

Ehud

Anonymous Coward says:

Re: NPA

Too bad techdirt doesn’t allow editing. There’s FAR more that 10000 numbers per NPA. Try something closer to 10000000 numbers. The 10000 you mention omits the exchange, if which there can be 1000. Of course, as you mentioned, some of those exchanges are reserved for special purposes (555, 911, etc).

Ehud Gavron (profile) says:

Re: Re: Re:2 NPA

Yeah, that’s wrong. It’s simple math.

(NPA) NXX-XXXX

You have seven digits to play with in each NPA. That’s at most 1,000,0000 numbers (one million).

Take away the parts you can’t use and you get less.

There’s NO WAY WHATSOEVER you can represent 7.9M numbers with 7 digits. Please show your work, then take this report card to your parents: F-.

E

Anonymous Coward says:

Re: Re: Re:4 NPA

Common enough error. Remember face palming on a recent anime episode of Ascendance of a Bookworm where the Dewey decimal system was mentioned. They mentioned what general category each of the digits 0 through 9 represented, which was OK. They then screwed up by mentioning that this divided all the possible books into 9 general categories. Really gotta wonder about quality control when they say things like that….

This comment has been deemed insightful by the community.
Norahc (profile) says:

"I survive on my creativity and when I see it being appropriated, the question becomes who’s hurting whose small business?" says Gillich. "I am protecting my livelihood."

Register trademark for something you didn’t create: check

Bully any other use of the thing you trademarked but didn’t create: check

Whine like a two year old about how other companies don’t respect your creativity and trademark: double check

Seriously, if anyone should have a trademark on area codes it would probably be AT&T from the Ma Bell days. If the USPTO had stopped the rubber stamp for half a second, they would have realized if Ma Bell hadn’t trademarked, patented, or copyrighted it then it isn’t eligible for those protections.

Ehud Gavron (profile) says:

Re: AT&T

First, before 1984 it was Bell System, but unrelatedly NANP came up with these codes — which for practical purposes are 3 digit numbers and not product identifiers (UPCs, SKUs, etc.)

To register for a trademark you need to show that

  • you’re using it in commerce
  • the trademark identifies YOU as the producer
  • other who use this mark might confuse the consumer into thinking YOU’RE involved but you’re not
  • reduces profit (causes damages)

There’s more but that’s the basic gist.

You can’t JUST register a trademark for 414… you need to have a product and show that you’re using it in commerce. Otherwise, everyone could register 200-909+920-999. Bullpucky.

This is a stupid USPTO registration (as was said in the original article) and while we can armchair lawyer it, will someone (PH, ACLU?) step up and help defend against it?

E

Ehud Gavron (profile) says:

Re: I wonder if you could trademark "USPTO"?

To do that there are two parts of the standard you’d have to meet:

  1. Choice of what category of commerce you’re applying to trademark. "Government issued monopoly of names" is not one, but even if was, you have hurdle number
  2. No prior users of this mark exist and I’m the first

For that latter one, btw, font counts. So in essence, no.

Best of luck to you. If you get that registration I’m shorting your stock!

E

That One Guy (profile) says:

When all you've got is an 'approve all registrations' stamp...

The USPTO generally does not consider area codes to be merely geographically descriptive and thus area codes used as trademarks are registrable without a showing of acquired distinctiveness.

It’s almost impressive how stupidly wrong they get this. Not only do they not understand that the entire point of area codes is to designate an area(it’s literally in the name), but the fact that you can register one without showing that you’re actually doing anything distinctive with it just encourages parasites to register and camp out on it, using the registration as a bludgeon to threaten people into giving the parasite money.

At this point I can only hope that someone registers the area code that the USPTO is in and starts sending them threat letters for using it, as while it’s not likely to go very far it would be just priceless to have them beaten over the head by the very stick they just handed out.

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