Plenty of small businesses use locality in creating a brand for their business. Here in the greater Phoenix area, there are no shortage of companies that make use of “Phoenix” or “valley” or “Camelback” or some other identifier of the region in their name, and no one bats an eye; after all, the name simply locates the business in the world. Then again, none of those companies have likely tried to trademark “Phoenix” knowing that such an effort would be entirely futile?
What about area codes, though? They’re certainly indicative of a region, and make for simple but evocative branding, but surely no one can claim to hold an exclusive right to use a telephone prefix that belongs to possibly hundreds of thousands of people, if not more? Well, you’d be correct on your thinking, but wrong on the facts of the matter.
Techdirt highlights a spate of cases surrounding area code trademarks and their owners pursuing anyone else who tries to use those marks, with specific examples in Chicago and Milwaukee. And while those individuals do in fact own those trademarks, the real question is, why were they granted by the USPTO?
There are undoubtedly plenty of companies that have latched on to the local area code and have built a successful business using those digits as part of their branding, and perhaps even been the first in the area to do so. But being the first or the most prominent to use an area code doesn’t grant any more right of ownership over something that is by its definition not unique. Stripped of context, an area code appears to be just that: numbers indicating a particular region of the country, and not necessarily tied to a business in that area, no matter how well marketed.
And yet that doesn’t seem to be the considered, or not considered, opinion of the USPTO. Area codes, despite being neither the creative work of a particular business nor unique identifiers, have been granted trademarks to those enterprising applicants. And those applications may not be limited to local businesses; Anheuser-Busch sought trademarks on more than a dozen area codes back in 2011, though a search of the USPTO database shows that the claims were eventually abandoned.
It’s hard to make sense of the USPTO’s position on the matter, given that they’re meant to review and consider applications rather than rubber stamp, and have done so with undoubtedly countless other applications that weren’t up to standard. How area codes pass muster where others fail is a question that probably doesn’t have a satisfying answer.
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