ChaCha ventures into uncharted trademark territory; revised

Jamptap recently noticed that ChaCha has been attaching the 'TM' (trademark) designation to the phrase '242242' on its website and press communications. Similarly, trademark protection for '242242' and '24224' is mentioned on ChaCha.com's 'Term of Use' page:

CHACHA, the CHACHA logo, SEARCH + BRAINPOWER, YOUR PARTNER IN SEARCH, WANNA CHACHA?, CHACHA CHING, ARE YOU READY TO CHACHA?, CHACHA RESEARCH, TEAMRANK, WEBGEMS, CHACHA CONNECT, 242242 or 24224 as well as other trademarks and logos and other names of ChaCha's products and services referenced on the Site are exclusively owned by ChaCha. All other products, services, and company names mentioned on the Site are the trademarks of their respective owners. By placing them on the Site, ChaCha does not grant to you any license or other authorization to copy, reproduce, or use the trademarks or logos, except as provided herein.

What's going on? Well, the alternative search engine company filed for a trademark of the number '242242' on February 13, 2008. The mark was a 'standard character' trademark registration not restricted to a specific graphical representation - meaning not for any particular style or font. ChaCha's type of mark is called a servicemark, which is the same thing as a trademark but is a designation used by companies that market services when they don't have a package to put their mark on. Why ChaCha isn't using the SM designation, and 'TM' instead, is unknown.

ChaCha's servicemark was published for opposition on July 8 and any potential opponents have thirty days to file their opposition. If there is no opposition, or any opposition is overcome, the registration will be issued in a few short months.

You may be thinking, 'Wait a second. You CAN'T trademark numbers.'

Not true.

Many companies have brands that they registered trademarks for, such as Levi's 501 Jeans and Boeing's 747.

For these companies and ChaCha, the trademarked number pertains to marketing use within a specific realm of services. So, any other company outside of ChaCha's realm of services, like meatpackers or an airline company or an apparel firm, can use and register for the mark '242242'. However a company that provides search engine services - related to interactivity on wireless devices, etc... - cannot market its services using '242242'. That would infringe on ChaCha's mark.

This isn't the first time that a web company sought a service mark for its wordnumber. 4INFO, a competitor of ChaCha that provides a similar type of text message search service, has a registered servicemark for '44636', which spells 4INFO on a cell phone keypad. That mark was filed in May 2006 and registered in February 2007. 4INFO doesn't attach the SM/TM designation to its '44636' mark, most likely because its wordnumber isn't a key component of its marketing/product strategy, unlike ChaCha which plasters the term '242242' everywhere you see the word ChaCha or wherever its CEO Brad Bostic speaks or goes.

Still confused? Generic words and numbers may be registered as trademarks however only for a very narrow category of goods and services. A generic word mark can be used if it isn't used generically within the business you're in. For instance, a text messaging company named 'mobile' wouldn't be able to register that word for its mark. The litmus test for trademarking numbers is if the relevant consuming public has developed a strong mental association between the number and the products the company sells. Almost 100% of the time, a numeric trademark is granted when the public has already established a link between the number brand and your company. For ChaCha, the USPTO believed that the public easily associates the number '242242' with ChaCha.

Houston there's a problem: Registering wordmarks for numbers that 'act' as wordnumbers might be a problem. What if we see a new mobile company emerge whose brand coincides with the numbers 2-4-2-2-4-2 on a phone keypad. There are thousands of letter combinations that can be created using the wordnumber 242242, including generic words like Bibbia ('Bible' in Italian), or a new word/brand such as 'Cicaga'. If a few folks get together and want to brand 'Bibbia' or 'Cicaga' as a text message search service and promote the corresponding wordnumber 242242, then what will happen? Well, for the next month or so, they can oppose ChaCha's application. Beyond, that would be a very interesting trademark confrontation for ChaCha's lawyers.