The War of the Roses is over, and the roses lost. On October 24, 1983, a federal judge in Madison, Wis., ruled against florist Al Felly in his attempt to affirm trademark rights, for which he filed in December 1972, to the slogan "Dial 1-800 FLOWERS" (see INC., July 1983, page 51). The decision leaves the disputed telephone number in the hands of a group led by Dallas, Tex., venture capitalist Bill Alexander and Madison trucker Curtis Jahn. It was Jahn's serendipitous assignment of the 800 FLOWERS anagram number back in 1976 that attracted Alexander's interest and ultimately led to their partnership in the flowers-by-phone business seven years later.
In his ruling, District Judge John C. Shabaz emphasized that 800 FLOWERS is a number "connected directly to the service offered." He also held that Felly had not fully exploited the commercial potential of the number.
Discussing the case more broadly, Shabaz wrote. "From the beginning [Felly] was unable to formulate more than an idea -- a vision, but not a plan. [He] had a dream. He had the name, but not the number. A useful idea -- a useless num- ber; a description of a number, but not the number itself and so . . . no plan . . . no advertising . . minimal use convenient only to existing customers. The mark was never placed on the market in a meaningful way, nor are there current plans to do so. Al Felly's purpose was to establish and maintain rights in the trademark in order to someday move forward if the real number ever stood up."
On the day he received his copy of the judgment, Al Felly sat down to phone friends and customers with the bad tidings. "I don't know what else I could have done to protect [the idea]," he said wearily. "We even postponed the trial to try to negotiate a deal, but they kept insisting that a knowledge of the flower business wasn't necessary [to run a telemarketing operation], and I couldn't live with that. It just didn't sit right with me."
His attorney, Nicholas Seay, was more directly critical of the court's finding. "[Judge Shabaz] said Al hadn't put enough into promoting the number, but I haven't seen much of their equity in this. Bill Alexander said right on the witness stand that he hadn't put a dime of his own money into the operation."
Ironically, Felly's willingness to pump capital into the telemarketing venture he does own (1-800 FLORIST) was cited as further evidence of his "intent to abandon" the FLOWERS foray. For now, he says, he must also abandon any plans to appeal. The reason? Blossoming legal bills and a withering of the spirit.
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