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Have you trademarked your Short Code?

Common Short Codes (CSC) are five digit numbers ranging from 20000 to 99999, or six digit numbers ranging from 222222 to 899999. Cell phone and PDA owners use CSCs to to send short message service (SMS) text messages to a commercial entity. Whereas typically text messages go directly to individuals, CSC messages are more often associated with commercial services, such as voting, polling, games, contests, coupons, mobile payments and other interactive applications.

According to Julia Anne Matheson and Anna Bonny of Finnegan Henderson, SMS generated texting in the U.S. generated $1.24 billion during the first half of 2005, up 154% over 2004. By next year, users will send an estimated two trillion SMS messages.

Obtaining a CSC involves registration with the Common Short Code Administration (CSCA) for CSC leases of three (3), six (6) or twelve (12) months. The cost of CSC leases varies from $500 per month for random CSCs, to $1,000 a month for specifically requested CSCs.

While there are only 757,778 or so CSCs available, as compared to a virtually unlimited number of domain names and telephone numbers, the extremely high cost of CSCs should prevent CSCsquatters from cornering the market. If you want a particular CSC corresponding to a particular five or six letter word, however, time is indeed of the essence.

Just as companies snapped up telephone numbers corresponding to various words spelled out on a telephone keypad, companies are now snapping up CSCs corresponding to particular words as well. Specific language in the CSCA sublicense agreement states “You agree that You will not take any action that would cause You to acquire any trademark, trade name or trade dress rights in the CSC.” Notwithstanding, companies like United Parcel Service of America, Inc. (UPS) are filing federal trademark registrations covering five letter words like “BROWN” as used in association with “sms, mss and short-code messaging services and wireless telephone networks.”

While trademark disputes between two parties seeking the same CSC are indeed possible, the difficulty in determining ownership of CSCs, the multiple number of words associated with a CSC, the specific reservation of intellectual property rights in the CSC by CSCA, the non-existence of a special forum like ICANN for the resolution of CSC intellectual property disputes and the high costs of ownership, all indicate trademark disputes over CSCs are likely to be few and far between.

Thanks to Cedar Rapids attorney Matt Krigbaum for the story idea.

Brett Trout

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