Telephone Mnemonics and Complementary Numbers: A Review of Trademark and Unfair Competition Law and Policy

I. INTRODUCTION Telephone mnemonics, or vanity numbers, are numbers represented by their corresponding letters from the telephone dial or keypad, which spell-either literally or phonetically-catchy words, phrases, trademarks, or names.1 Since as early as the 1970s,2 especially following the advent of nationwide "800" toll-free telephone service, telephone mnemonics have become a ubiquitous part of American advertising and culture. Numbers such as 1-800-COLLECT, 1-800-DOMINOS, and 1-800-FLOWERS have became so common as to slip into everyday speech and show up in popular culture. For example, in the popular film "Pretty Woman," when high-society millionaire Edward Lewis (played by Richard Gere) was asked where he found his beautiful date (played by Julia Roberts), he turned and responded with a wry grin, "976-BABE."3 This quip, of course, was humorous only because everyone in the audience instantly understood it as a reference to the telephone number of some imaginary escort service. But no sooner had mnemonic telephone numbers appeared on the scene than business owners found a crafty way to exploit the advertising efforts of their competitors by using complementary numbers. Competitors soon discovered that consumers who dial mnemonic telephone numbers occasionally misdial and sometimes substitute a zero for the letter "O," or the number one for the letter "I." These resulting misdials are called complementary numbers because, if written out, they resemble the actual mnemonic, but are numerically different. By purchasing the rights to numbers that complement established, famous mnemonic numbers, market competitors can sometimes instantly grab a significant share of the market in the same business with little or no advertising. Not surprisingly, this practice has spawned numerous lawsuits under trademark and unfair competition laws. However, judicial resolution of these disputes has been inconsistent4 and has tended to focus solely on trademark law, while unfair competition considerations have been misunderstood, misapplied, or simply put in the backseat. This Comment will consider the current standard of protection afforded complementary telephone numbers against the backdrop of trademark and unfair competition law and policy, and attempt to suggest a rational framework for courts to follow in resolving these disputes. Part II will review the background, history, and major decisions in trademark law as applied to telephone numbers and mnemonics and review, in particular, the genericness doctrine. Part III will examine the Sixth Circuit's treatment of complementary numbers in Holiday Inns, Inc. v. 800 Reservation, Inc in light of this background. Part IV will analyze the case law, history, and policies that underlie unfair competition law in this area. Part V suggests an analytical theory to guide future decisions regarding complementary numbers based on the policies underlying the Lanham Act and other general policies of law and economics. Part VI concludes that this theory, which imposes a duty on businesses to prevent confusion, would better allow the Lanham Act to perform its intended function. II. TRADEMARK LAW, NUMBERS, AND MNEMONICS Trademarks receive legal protection only to the extent that they serve to designate the source, origin, or affiliation of goods or services.5 From a policy standpoint, legal protection of such designations is considered beneficial because distinctive trademarks simultaneously encourage economic efficiency and the production of high quality goods and services.6 In the same vein, the value of mnemonic telephone numbers lies in their ability to stick in the customers' memories and guide them to a provider of goods or services. To the extent trademarks and telephone mnemonics serve these similar purposes, any discussion of the unfair competition aspects of telephone mnemonics and complementary numbers must be viewed against the backdrop of trademark law. …