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A federal judge in Georgia has issued an injunction against one of BellSouth Corp.’s Macon competitors for illegally using the BellSouth name and telling potential customers it is providing BellSouth services. U.S. District Judge Willis B. Hunt Jr. issued a “narrowly tailored” preliminary injunction on April 11 that bars Access Integrated Networks Inc. of Macon from using BellSouth’s trademark or name and from representing itself as a subsidiary or division of BellSouth. In his order, Hunt also enjoined AIN from telling potential customers that their telephone services would remain with BellSouth even if they signed a telephone services agreement with AIN. The injunction also barred AIN from offering for sale any goods or services that company sales personnel falsely identified as BellSouth products. “The Court is troubled by some of the alleged abuses of BellSouth’s marks and trade dress and anticipates that the narrow injunction set forth herein will help to alleviate some, if not all, of the customers’ confusion in that area,” Hunt wrote in his order. BellSouth v. Access Integrated Networks, No. 102CV2165 (N.D. Ga. April 11, 2003). Hunt’s order was BellSouth’s second attempt to secure an injunction against AIN, one of 330 BellSouth competitors in a nine-state region that includes Georgia. AIN leases wholesale access to telephone lines and other equipment from the BellSouth regional companies and then sells those services, in competition with BellSouth, to retail customers. In accordance with federal telecommunications laws, BellSouth is required to sell access to its communications infrastructure to competitors. But those competitors, who also are customers of BellSouth, are forbidden by law from claiming an affiliation with BellSouth, said Joseph H. Chandler, BellSouth’s director of corporate communications. In court pleadings attached to the second injunction request, BellSouth attorneys argued, “The ability to resell goods and services does not create a license for a defendant to describe itself as an affiliate of the original producers.” Even though the telecommunications industry is a “rough and tumble one,” BellSouth attorneys argued that AIN cannot be allowed to compete by using “half-truths and misleading references to BellSouth.” BellSouth alleged that AIN telemarketers were claiming AIN was a BellSouth affiliate; that AIN sales personnel were engaged in “massive slamming,” or unauthorized switches of consumers’ telecommunications services; and that AIN sales personnel had “begun to forge consumers’ signatures on requests for changes of service.” In a formal response to the allegations, AIN claimed that it was disciplining employees who told customers AIN was affiliated with BellSouth, that it had ended its telemarketing campaign and that complaints about its sales practices constituted “a microscopic percentage of AIN’s activities.” Last summer, Hunt refused to issue an injunction against AIN, finding that although it illegally had used BellSouth’s trademark in soliciting business, the company had stopped the practice before BellSouth sought the injunction. Hunt said in his most recent order that he decided to revisit the issue, because “the evidence shows that BellSouth continued to receive complaints about AIN’s conduct as late as January 2003.” “What this competitor was attempting to do was leverage itself off the BellSouth name. That’s not appropriate,” Chandler said Tuesday. “We took action to try to make that stop.” In this case, BellSouth is represented by local Kilpatrick Stockton attorneys Stephen M. Schaetzel, Theodore H. Davis Jr. and Lisa E. Furjanic and by J. Henry Walker IV, in-house counsel. Bruce W. Baber, Barry Goheen, Amy Yervanian and M. Melissa Cannady of King & Spalding and Macon attorney D. Mark Baxter represent AIN in this case. Baber said Tuesday that King & Spalding’s policy is not to comment on pending litigation.

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