A federal court mediation process is scheduled to begin next month between AirTouch Communications Inc. and Pacific Bell Mobile Services Inc. regarding phone promotion materials used in the San Diego market.
Litigation began in November, at the onset of the holiday sales period. AirTouch sought a temporary restraining order from the U.S. District Court in San Diego to get Pac Bell Mobile’s product off the shelf, due to alleged packaging infringement. The court denied the request.
Pac Bell Mobile launched service Nov. 1 in San Diego; it offers service at 1900 MHz using Global System for Mobile communications technology.
AirTouch is an incumbent cellular operator in San Diego, where it operates both analog and digital phone service. Both sell in a retail environment as well as through dealers.
“We have no qualms about having a competitor,” said AirTouch spokeswoman Amy Damianakes. “We just didn’t expect a look-alike competitor.”
AirTouch objects to the overall “look and feel” of the Pac Bell Mobile promotion. The printed materials of both carriers contain airy clouds, as do the promotions of numerous other companies in this industry.
However, Pac Bell Mobile’s “Mobile PCS” slogan has a yellow arc reaching above it, similar to the one on the AirTouch brand logo, Damianakes charged.
“It confuses our customers, which is further fueled by the fact that some people still think AirTouch and Pacific Bell are part of the same company, even though the spin took place almost three years ago,” Damianakes said.
Pac Bell Mobile believes AirTouch was trying to interfere with its holiday sales, said Jim Tuthill, vice president and general counsel for Pac Bell Mobile Services.
“It was to get the phones off the shelf, an attempt to stop competition. Our position is that we deny the allegation,” Tuthill said. “We didn’t copy theirs and had no knowledge of theirs until ours was in production.”
Pac Bell Mobile presented the court with a 10-foot by 10-foot display depicting sky and clouds that Pac Bell’s parent telephone company has used for years, Tuthill said.
“AirTouch hasn’t shown it has established a protectable interest,” he said.
The court denied a second preliminary injunction in December. The court suggested the carriers try to settle the matter, so the case is scheduled for mediation in early March and could go to trial if not resolved.
Industry analyst Herschel Shosteck said similar campaigns should be expected because carriers are promoting the same popular features.
“Today, everyone talks about voice quality, privacy, one-minute incoming free and no contract. Now that (American Personal Communications L.P.) in Washington has done that, everyone is moving to copy it. With everyone responding to the situation the same way, they can look and feel alike even if there is no conscious effort to copy,” Shosteck said.
