Sound Entertainment DJ's, Inc. v. Forman

This case was heard by this court together with the case of Sound Entertainment DJ’s, Inc. v. Neal Cohen and Howard Forman and Larry Greenberg, Ind. & as copartners t/a Fascinating Rhythm Disc Jockeys, C.P., December Term, 1980, no. 4094. The findings in the adjudication of that case are incorporated herein by reference.

The evidence at trial established that defendant Bell of Pennsylvania (Bell), a telephone company, after reserving for six months for plaintiff, by letter dated March 13, 1980, the telephone number 333-5297 (DEE-JAYS), on July 24, 1980, assigned the number to Howard Forman, a partner of a competitor of plaintiff. This competitor was at that time employing defendant Neal Cohen, with whom Herbert Cohen, president of plaintiff, had expressed his *116keen interest in the said number while defendant Cohen was in plaintiff’s employ.

Although initially defendant Bell expressed an intention of filing preliminary objections challenging the jurisdiction of this court, Bell, on the second day of the hearing indicated that, if plaintiff dropped its claim for damages, Bell would not contest the matter further and would abide by the court’s decision as to who should have number 333-5297. Plaintiff did not drop its claim for damages, but at the conclusion of plaintiff’s evidence the court granted compulsory nonsuits as to all damage claims against all defendants. Thereupon Bell in essence declared itself as stakeholder with respect to the number and indicated that it would give the contested number to whatever party the court directed.

Although the evidence establishes that Bell mistakenly gave the telephone number reserved for plaintiff to a competitor of plaintiff, there is no evidence of intentional impropriety on Bell’s part. We believe, however, that Bell’s mistake should be corrected and the said number made available to plaintiff. We believe further that the evidence warrants the inference that defendants Cohen, Forman and Greenberg all knew that they were attempting to obtain a telephone number in which plaintiff had expressed interest. We believe defendants’ effort to obtain the number was prompted by the knowledge of plaintiff’s interest. In any event, the number 333-5297, which reads DEE-JAYS on telephone dials and pushbuttons, we consider a very valuable item for anyone in the disc jockey business. We need not consider here the nature of the interest a subscriber may have in a reserved or assigned telephone number. However, we consider it unrealistic *117not to recognize that telephone numbers can and do develop extrinsic value. We suggest to Bell that in the future it deal with numbers of this kind more carefully than it apparently dealt with the number in this case. We do not believe that Bell will always be able to make the kind of mistake it admittedly made here and then say simply and with impunity, “We want to extend our sincerest apology and regret,” as it did in its letter of September 25, 1980.

It has been suggested by Bell that a transfer of the telephone number in question from defendants to plaintiff at this time would work a hardship on the said defendants, because plaintiff would suddenly begin to receive defendants’ calls. We believe that this is part of the risk defendants took when they acquired the number under the circumstances they did. Moreover, we believe such a hardship would be temporary and would not warrant any special relief of this court.

DECREE NISI

And now, February 4, 1981, it is ordered and decreed as follows

1. Defendant Bell Telephone Company is hereby ordered forthwith to withdraw the telephone number 333-5297, presently assigned to defendant Howard Forman, and assign the said number to Sound Entertainment DJ’s, Inc., plaintiff herein. Plaintiff shall be obliged to accept and pay for whatever service the telephone company is presently able to make available with respect to said number.

2. Defendants Howard Forman and Larry Greenberg, co-partners, trading as Fascinating Rhythm Disc Jockeys, are hereby enjoined forth*118with from in any way using the telephone number 333-5297 or representing that the number is theirs.

3. Defendants WTAF-TV, Channel 29, and WMGK-FM 103, are hereby enjoined from accepting or broadcasting any advertisement using the telephone number 333-5297 of any party other than Sound Entertainment DJ’s, Inc., plaintiff herein.

This decree nisi shall become final 20 days from this date unless within that time exceptions are filed hereto.