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.

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Filed Under: 414, area codes, fred gillich, trademark
Companies: 414 milwaukee, beard mke, cream city foundation, cream city print lounge, too much metal


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  • icon
    Ehud Gavron (profile), 6 Jul 2020 @ 7:34pm

    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

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jul 2020 @ 9:06pm

      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).

      reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 6 Jul 2020 @ 9:33pm

        Re: Re: NPA

        Yup, my post was off by a factor of 10.

        10,000 numbers per NPA.
        Some exchanges not available (0XX, 555, 011, X11, etc.)
        Some number of numbers within exchanged not available either.

        E

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jul 2020 @ 12:53am

          Re: Re: Re: NPA

          Still off by nearly 2 orders of magnitude. Did a bit of Google foo and found https://en.wikipedia.org/wiki/North_American_Numbering_Plan indicating that each area code can support up to 7,919,900 phone numbers using the current numbering scheme.

          reply to this | link to this | view in chronology ]

          • icon
            Ehud Gavron (profile), 7 Jul 2020 @ 1:03am

            Re: Re: Re: Re: 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

            reply to this | link to this | view in chronology ]

            • icon
              Ehud Gavron (profile), 7 Jul 2020 @ 1:04am

              Re: Re: Re: Re: Re: NPA

              Wait, I'm being stupid. You're right.

              Time to go to bed. My apologies, and MY F minus.

              E

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 7 Jul 2020 @ 1:43am

                Re: Re: Re: Re: Re: Re: 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....

                reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 6 Jul 2020 @ 9:25pm

      Re: NPA

      Yes. I was trying to buy a Peugot 404 but I couldn't find one.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jul 2020 @ 9:27pm

    I detect the distinct stench of a sibling lawyer. Maybe a brother-in-law, but this lawsuit is a family affair, being trademark shakedowns.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jul 2020 @ 11:40pm

      Re:

      That's interesting. Have you studied family relationships and how often they impact lawsuits? I imagine it must happen a lot.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jul 2020 @ 9:34pm

    Ima go out and start trademarking ZIP codes and geographical coordinates. I can do that, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jul 2020 @ 11:48pm

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    Alexa Summary:
    Crazy emotional white kids comment on things they know nothing about.

    Makes sense

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 7 Jul 2020 @ 12:02am

    "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.

    reply to this | link to this | view in chronology ]

    • icon
      Ehud Gavron (profile), 7 Jul 2020 @ 12:20am

      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

      reply to this | link to this | view in chronology ]

  • icon
    zyffyr (profile), 7 Jul 2020 @ 1:56am

    Numbers are trademarks

    I could swear that it was established 20 or so years ago that bare numbers aren't eligible for trademarks. That is why Intel dropped the numbering system and instead of calling its then upcoming processor the 586 it went with Pentium.

    reply to this | link to this | view in chronology ]

  • identicon
    Jay Wells, 7 Jul 2020 @ 3:10am

    "trademark" is not a verb.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 7 Jul 2020 @ 3:41am

    I wonder if you could trademark "USPTO"?

    Then force them to license the mark from you if they want to use that acronym? So far, it looks like you probably could.

    reply to this | link to this | view in chronology ]

    • icon
      Ehud Gavron (profile), 7 Jul 2020 @ 4:03am

      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

      reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 7 Jul 2020 @ 3:54am

    Oxford says it is

    Maybe I can make up for my math error by sharing this:
    https://www.lexico.com/en/definition/trademark

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 7 Jul 2020 @ 4:07am

    You gotta lock that down.

    Time to move to hyper-local block group branding.
    https://en.wikipedia.org/wiki/Census_block_group

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Jul 2020 @ 7:08am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 7 Jul 2020 @ 7:53am

    Does this mean…

    That Ludacris is going to get sued for Trademark Infringement?

    reply to this | link to this | view in chronology ]

  • icon
    PNRCinema (profile), 7 Jul 2020 @ 9:06am

    Maybe this would make sense

    If the USPTO allowed this if the area code were branded WITH a product, thus it would be the whole, like "414 Milwaukee", but not just the "414" - as it is, it makes absolutely no sense....and we wonder why there is so much bullshit in the world today...

    reply to this | link to this | view in chronology ]

    • icon
      Jeremy Lyman (profile), 7 Jul 2020 @ 11:22am

      Re: Maybe this would make sense

      Just as with copyright, you shouldn't be able to claim the building-blocks of language. Stick the blocks together in a meaningful pattern and then we'll talk.

      reply to this | link to this | view in chronology ]

  • icon
    Celyxise (profile), 7 Jul 2020 @ 12:39pm

    Words

    The area code has the word area in it.

    Ah, but it also has code in it and we all know what happens with IP people hear anything computer related.

    reply to this | link to this | view in chronology ]

  • identicon
    jas, 10 Jul 2020 @ 1:15pm

    bullying.

    he's not being a bully. he's enforcing his rights to his brand and trademark
    dont be a bitch and cry bully.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jul 2020 @ 1:41pm

      Re: bullying.

      Don't be a bitch, bully.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 13 Jul 2020 @ 2:43pm

      Re: bullying.

      Question: why should a number that is associated with a geographic area that many people live in be able to be trademarked to begin with?

      Also, how “he[] enforc[es] his rights to his brand and trademark” is a fairly important detail you’re ignoring here.

      reply to this | link to this | view in chronology ]


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