IP Law Daily, TRADEMARK—C.D. Cal.: Personal injury law firm alleges advertising agency and vanity phone number provider infringed (866) GOT-PAIN trademark to divert potential clients, (Feb 4, 2025)

By Robert Margolis, J.D.

Complaint alleges defendants caused confusion among potential clients who called that phone number but were sent to call center run by defendant referral service.

Pfoong Law Corporation, a California personal injury law firm whose principal Anh Pfoong Salcedo (Attorney Pfoong) had allegedly achieved “the status of a celebrity” due to ubiquitous billboard, radio, and bus advertisements throughout the State, brought a seven-count complaint against an advertising agency hired to provide referrals to Pfoong and a “vanity phone number” provider, alleging the two worked together to divert potential clients from Pfoong. The alleged scheme revolved around the defendants’ use of Pfoong’s phone number (866) GOT-PAIN, which Pfoong has federally registered as a trademark. Pfoong claims tens of millions of dollars of damages, based on alleged losses of more than $200,000,000 in potential settlements and judgments it could have achieved if hired by the diverted clients. The case has been assigned to Judge Josephine L. Staton (Phoong Law Corp. v. Primary Wave Media, LLC, No. 2:25-cv-00840 (C.D. Cal. Jan. 30, 2025)).

(866) GOT-PAIN. Pfoong alleges that through its extensive advertising campaign throughout California, the firm and Attorney Pfoong “have established a respected brand” in the State, and have obtained more than $200,000,000 in settlements and judgments for clients in the last eleven years. Her billboards and bus advertisements include the catchphrase “Something Wrong? Call Anh Pfoong” followed by the phone number for prospective accident and personal injury clients to call: (866)-GOT PAIN. Pfoong owns a federal trademark registration for the mark (866) GOT-PAIN, for legal services in International Class 45.

Alleged scheme. In January 2017, Pfoong contracted with Defendant Primary Wave Media, LLC (Wave), which purports to be a leading provider of “toll-free vanity numbers.” The parties agreed that in exchange for Wave Media granting Pfoong exclusive rights to the (866) GOT-PAIN number for all calls originating from phones with area codes in Northern California, Pfoong would pay a yearly marketing fee plus per-minute charges for calls each month. The agreement was amended to expand the territory to include area codes within all Southern California as well.

Pfoong also alleges that in marketing the contract to it, Wave representatives stated all calls to the (866) GOT-PAIN number from phones with exchanges outside of the contracted-for territory would receive a busy signal or be diverted back to Wave. The Wave representatives also allegedly assured Pfoong that none of the law firm’s competitors would receive calls made to that number from phones with exchanges outside the territory. Pfoong claims it relied on those representations in deciding not to contract for exclusive rights for that number for calls originating nationwide.

Pfoong also has contracted with Walker Advertising, LLC, a personal injury referral service, whereby Walker is to provide Pfoong leads for customers looking for a personal injury attorney. As Walker also refers potential personal injury clients to other law firms in California, Pfoong alleges that Walker is in competition with Pfoong.

Pfoong alleges that Wave and Walker entered into an arrangement whereby calls made to (866) GOT-PAIN from exchanges outside the territory covered by Pfoong’s agreement with Wave are diverted to Walker’s referral service for referral to other personal injury law firms. Thus, for example, if a person with a cell phone having a New York area code but who happens to be in California and is looking for a personal injury lawyer calls (866) GOT-PAIN, Pfoong alleges that Wave diverts the call to a California call-center run by Walker, instead of receiving a busy signal or being diverted back to Wave as allegedly promised. Pfoong also alleges that call-center operators ultimately refer such callers to attorneys other than Pfoong, even if the callers refer to the trademark and ask for Pfoong.

With respect to the use of (866) GOT-PAIN, Pfoong alleges that persons reaching the Walker call-center and asking if they have reached that number are misinformed that they have. Thus, the Walker call-center operators allegedly “claim[ed] ownership” of the (866) GOT-PAIN mark, thereby infringing it. Call-center operators also allegedly mislead callers into thinking they will be connected with Pfoong.

Thus, Pfoong alleges that Walker is intentionally attempting to cause consumer confusion by (1) contracting with Wave to receive calls to (866) GOT-PAIN from phones outside the territory; and (2) leading callers to believe they will be connected to Pfoong attorneys. Finally, Pfoong alleges that web searches for the mark conducted within California promote Walker’s referral service, thus leading Pfoong to believe that one or both defendants purchased the (866) GOT-PAIN mark as a key word search term from various search engines, which is another act of infringement likely to cause consumer confusion. All told, Pfoong alleges the diversion of thousands of potential clients costing it tens of millions of dollars in damages.

Claims. Pfoong alleges that the defendants’ use of (866) GOT-PAIN to misdirect customers constitutes trademark infringement and unfair competition in violation of the Lanham Act, in that call-center operators have falsely claimed the call-center owns that mark, and the defendants allegedly purchased the mark for use as a search term on internet search engines. Pfoong alleges this causes consumer confusion as to “the origin of the legal services provided by” Pfoong.

Pfoong also brings a claim for unfair business practices in violation of Cal. Bus. & Prof. Code § 17200 et seq., and several state common law claims: (1) breach of the covenant of good faith and fair dealing against Wave; (2) fraud in the inducement against Wave; (3) conspiracy to defraud against both defendants; and (4); intentional interference with prospective business relations against both defendants.

Pfoong seeks damages, including punitive and exemplary damages, injunctive relief, pre- and post-judgment interest, and reasonable attorney fees.

The case is No. 2:25-cv-00840

Judge: Staton, J.

Attorneys: Ognian Gavrilov (Gavrilov & Brooks) for Phoong Law Corp.

Companies: Phoong Law Corp.; Primary Wave Media, LLC; Walker Advertising, LLC

Cases: Trademark CaliforniaNews