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use of that term. It stated that the
District Court was clearly entitled to conclude that defendant's use of the telephone number 1â800â628â8737 was confusingly similar to plaintiff's telephone number 628â8737 in those area code regions in which plaintiff solicited telephone orders, especially in view of defendant's identification of its number as 1â800âMATTRESS after plaintiff had promoted identification of its number as (area code)-MATTRES.
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Ultimately, the
District Judge issued a preliminary injunction and held that although Page was allowed to use the 1-800-MATTRES(S) number, Page was to notify the telephone company not to connect to Page's number any calls that came from certain area codes in the New York area (201, 212, 516, 203, and
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Page was fully aware of Dial-A-Mattress's business number before buying the 1-800 number. He advertised it as 1-800-MATTRESS. Although the âSâ at the end of the number seems to add an extra digit than what a normal telephone number would, dialing the extra âSâ made no difference; the call would still
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protection even if the word or number is a variation of that generic term, e.g., the generic term âshoesâ as opposed to a variation like âshoozâor âshoeâ. However, although a second comer is entitled to use a generic term already being used by a competitor, the second comer may still be enjoined from
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The court concluded by affirming the preliminary injunction and reasoned that although one company's use of a generic term does not preclude competitors from using the term for their own business purposes, it does not mean competitors may use the term to deceive the public with a confusingly similar
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The plaintiff, Dial-A-Mattress, was a retail dealer that sold mattresses primarily over the phone. Beginning in 1976, the company's phone number in the New York metropolitan area had been 628-8737 or M-A-T-T-R-E-S on the telephone dial. Dial-A-Mattress used this number extensively in advertisements.
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Following the events stated above, Dial-A-Mattress filed a complaint against Page seeking an injunction, an accounting, and damages on claims of trademark infringement, unfair competition, and unjust enrichment under federal and New York law. A temporary restraining order was issued, enjoining Page
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Defendant
Anthony Page, was in the business of selling beds before deciding to expand his business into mattresses. In order to obtain a telephone number for his new mattress business, Page bought the telephone number of a company that went out of business whose number began with 1-800-MAT and then
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From the start, the court noted that DialâAâMattress could not claim trademark rights in the word âmattressâ used solely to identify its company or its product. It further stated that protection would not be available if the word was used for these purposes with a spelling variation that did not
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Getting to the crux of the matter, the court stated that telephone numbers may be protected as trademarks, and a competitor's use of a confusingly similar telephone number may be enjoined as both trademark infringement and unfair competition, especially when companies doing significant business
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As stated by the
Appeals Court, the "somewhat novel" issue raised in this case is whether it is unfair competition for a business to acquire a telephone number identified by the spelling of a generic term that a competitor is using (albeit with a spelling modification) to identify its telephone
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Although one companyâs use of a generic term does not preclude competitors to use the term for their own business purposes, it does not mean competitors may use the term to deceive the public with a confusingly similar use of that
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181:, which dealt with the issue of whether a plaintiff's telephone number, which translates into a generic term, is entitled to judicial protection when a second comer tries to use a confusingly similar number.
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In order to enable its customers to make toll-free long-distance calls to place orders, Dial-A-Mattress sought to obtain the number 1-800-628-8737; however, the number was unavailable until
January 1989.
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The court then noted that a second comer may be enjoined from passing itself off as the first user and may be required to take steps to distinguish itself from the first user.
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49:"Dial-A-Mattress Franchise Corporation v. Anthony Page, dba Easy Associates, Page Industries, and Easy Bed, and Easy Bed, Incorporated"
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through telephone orders frequently promote their telephone numbers as a key identification of the source of their products.
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from using the 1-800-MATTRESS number and the case was set for an evidentiary hearing.
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later exchanged the last four digits to become 1-800-628-8737 or 1-800-MATTRES.
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Appeal from United States
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Chicago World's Fairâ1992 Corp. v. The 1992 Chicago World's Fair Comm'n
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change the generic significance for the buyer, such as âMATTRES.â
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718), thus disclaiming itself from Dial-A-Mattress's business.
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United States Court of
Appeals for the Second Circuit cases
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As in this case, a generic term is generally excluded from
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