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Many businesses obtain the telephone numbers that are the most frequent misdials of their vanity numbers to ensure they receive calls from all potential customers.
Marketers are becoming increasingly dependent on toll-free vanity numbers for taking orders from customers.
Although the phone numbers generally are not entitled to protection under trademark laws, the marketer may have trademark rights in the mnemonic word or words formed by matching each digit of the phone number to the letter that corresponds to it on a telephone keypad. If the vanity number qualifies for trademark protection, infringement is determined under the same likelihoodof-confusion standards that apply to any claim of trademark infringement and unfair competition.
Until recently, most people who used a phone number similar to a competitor's vanity number were found to have committed trademark infringement. This changed substantially on June 24, 1996, when the U.S. Court of Appeals for the Sixth Circuit reversed an earlier finding of trademark infringement in Holiday Inns Inc. vs. 800 Reservation Inc. The appeals court ruled that the defendant, usually known as Call Management, did not commit trademark infringement, even though it intentionally acquired a phone number that differed by only one digit from Holiday Inns' 1-800-HOLIDAY number expressly for profiting from misdials to book reservations at both Holiday Inns and other hotels.
The court's decision was motivated in part by its perception that Call Management acted at all times in good faith by taking steps to dispel confusion.
The few courts that had addressed claims...