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