Many Internet users today are familiar with the scam of “typosquatting” – which is when a company registers a domain name that is similar to a well-known domain name, and waits for people to inevitably make typos and get sent to the wrong site. Courts have found such behavior to be both trademark infringement and a violation of the Anti-cybersquatting Consumer Protection Act (“ACPA”).
But domain names are not the only places where typos are made. Telephone numbers, particularly vanity numbers, offer a number of ways for consumers to be confused and accidentally connect to the wrong company. But despite the strong protection against domain name typosquatters, courts have held that there is no such protection for “typosquatting” phone numbers. This was clear in a summary judgment decision issued this past week in Ohio, Dish Network, LLC v. Fun Dish, Inc., et al., Case No. 08-cv-1540 (N.D. Ohio, June 12, 2015).
In Dish Network, the case revolved around the defendant’s registration of phone numbers that are similar to Dish Network’s customer service phone number, which is 800-333-DISH (3474). The defendants are a collection of associated corporations that are all retailers for DirecTV, a competitor of Dish Network. The defendants registered similar phone numbers, including 888-333-3474 and 866-333-3474. Under the United States’ phone system, the “888” and “866” area codes signify toll-free phone numbers, and thus are often used as the prefixes for famous nationwide phone numbers, similar to the “800” area code.
Defendants never denied that they registered the typo phone numbers primarily to attract misdialing Dish Network customers. When a Dish Network customer accidentally called one of the typo numbers, defendants’ operators would try to get the customer to switch to DirecTV. Dish Network sued the defendants over this behavior (among other claims), alleging that the use of the typo phone numbers amounted to trademark infringement and unfair competition under the Lanham Act and similar state laws. The defendants moved for summary judgment, arguing (among other claims) that their use of the typo phone numbers was not a violation of the Lanham Act.
Relying on an earlier Sixth Circuit case that also involved confusingly-similar telephone numbers, Holiday Inns, Inc. v. 800 Reservation, Inc., 86 F.3d 619 (6th Cir. 1996), the district court held that although the defendant’s numbers were confusing, Defendants did not cause the confusion because the numbers already existed in the phone system – Defendants merely took advantage of confusion that “already exists amongst the misdialing public.” The court held that “mere ownership of similar numbers, without advertisement and without use of Plaintiff’s “DISH” trademark in advertising Defendants’ similar numbers, does not constitute a Lanham Act violation under either Section 32 or 43(a).”
The court focused on the fact that the defendants never advertised the typo phone numbers, and never used the word “DISH” in connection with their similar numbers (in other words, although they registered the typo phone numbers precisely because the last four numbers spelled “DISH,” the defendants did not publicize that fact.) The court therefore granted the defendants’ summary judgment motion on the counts of the amended complaint related to use of the phone numbers.
The court’s ruling highlights the fact that while companies often defensively register domain names, they should also consider defensively registering phone numbers. Not only companies dependent on famous telephone numbers, such as 1-800-CONTACTS or 1-800-FLOWERS, but also those with 1-800 customer service and/or sales numbers. You never know who might be waiting to make a profit off of your potential customers’ misdials, and current intellectual property law will not protect you from such typosquatters.