patrick.net

The Lanham Act permits a non-owner of a registered trademark to make "fair use" or "nominative use" of a trademark under certain circumstances without obtaining permission from the mark's owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized in those instances where a reader of a given work is clearly able to understand that the use of the trademark does not suggest sponsorship or association with the trademark owner's product or services and therefore is not being used in a manner to confuse the reader.

. . .

An author's use of a trademark for the above-referenced situations should be considered a non-confusing "nominative use" when it meets the following requirements: (1) the trademark owner's product or service must be one that is not readily identifiable without the use of the trademark; (2) the author only uses as much of the trademark as is reasonably necessary to identify the trademark owner's products or services; and (3) the author does nothing that would, in conjunction with the trademark, suggest to the reader sponsorship or endorsement by the trademark owner.

http://www.publaw.com/fairusetrade.html

Damn right! I'm talking about THEM.

That's "nominative use" for sure.

I vote we call them "Real-whores" from now on. Can we trademark that?

They're a dying breed and uber protective of their trademark.

http://blog.sellsiusrealestate.com/trademarks/can-the-realtor-trademark-fall-into-the-public-domain/2007/10/02/

http://activerain.com/blogsview/721335/should-the-word-realtor-be-a-trademark-

Why not use "RE agent" or "agent" instead? That's not trademarked. Looks like they've got plenty of time on their hands, what with not selling houses and all...

I looked up "can a site use the word realtor" and it looks like the term has become generic, but a trademark lawsuit found that it wasn't generic (after 96 people were polled). it has yet to make it to federal court, but how much can you afford in legal fees?

On the other hand, think of the negative publicity NAR is inviting.

elliemae says

They’re a dying breed and uber protective of their trademark.

I would be emarrassed to use that trademarked name in conjunction with mine, but I guess that's one reason I don't sell realestate LOL.

rob918 says

elliemae says

They’re a dying breed and uber protective of their trademark.

I would be emarrassed to use that trademarked name in conjunction with mine, but I guess that’s one reason I don’t sell realestate LOL.

They use their name because "prostitute" is too generic.

APOCALYPSEFUCK says

Patrick,
Realtors® are no more or less protected by anything than Pederasts®, Arsonists® or Nazis®
Tell these people if they want to hear your opinion about their claims, they’ll have to come over to your house and chew the smegma off of your dog’s gonads.

Another enlightening post from the potato pusher. It appears that you can't use the word in your logo or to promote your site in any manner. However, I'd look into Troy's info further. Any lawyers out there?

Patrick,

Seems like there may be two possible explanations of this email:

1. the realtwhores are trying to scare you into not speaking about them by name.

OR

2. the realtwhore association is emailing every site of the interwebs that somehow contains the phrase Realtor(TM) and tries to ensure that the site is not trying to claim that it represents a member of the NAR unless it really does.

If 1, they must be really stupid or relying on people being really stupid. If 2. I suggest putting a humorous disclaimer on the front page along the lines of "We are in no way, shape or form claiming to be member, associate or otherwise affiliated with the National Association of Realtors(TM). In fact, we would not be caught dead associating with the NAR. We do however reserve the right to mention and criticize NAR and its members by name, as time permits".

elliemae says

It appears that you can’t use the word in your logo or to promote your site in any manner.

I wonder if the statement: "In fact, we would not be caught dead associating with the NAR" could be construed as promoting the website by taking the Realtor[TM] holy name in vain :-) :-).

justme says

Seems like there may be two possible explanations of this email:

1. the realtwhores are trying to scare you into not speaking about them by name.

OR

2. the realtwhore association is emailing every site of the interwebs that somehow contains the phrase Realtor(TM) and tries to ensure that the site is not trying to claim that it represents a member of the NAR unless it really does.

I absolutely insist on my basic right to speak about realtors by name, and there is no way anyone could construe my site as somehow claiming to represent a member of the NAR. So I think those two are pretty easy to defend against.

The only thing they might possibly be able to force me to do is use their hated name in ALL CAPITAL LETTERS with that ugly ® after it, in which case I will always prefix their name with some epithet, like this: "What asshole REALTORS® won't tell you"

But even that requirement is dubious. It feels like a basic violation of human rights to demand certain forms of address by law.

Here's a good article about what the first amendment does and doesn't protect:

http://news.yahoo.com/s/ynews_excl/ynews_excl_pl3441

The NAR's main beef is that you are using the trademarked term "realtor" to refer to anyone who sells real estate, whether or not they are a "realtor" who is registered with the NAR. If the term "realtor" becomes generic, which I submit it has, they lose their trademark rights. Hence they are asking you to use other terms, such as real estate agent.

There are a number of trademarks that have become generic, like Hoover and Band-Aid and Velcro. Once the whole world uses the word to describe ANY similar product, the trademark loses its distinctiveness and can no longer function as intended, which is to differentiate the trademarked goods or services from other goods and services. To prevent a trademark from becoming generic, companies "police" the use of the mark to insist that it be used correctly (e.g. "I performed a search on Google" and not "I googled.") If companies don't "police" their marks the case for them having become generic is stronger.

Here's a wikipedia entry on this topic:

http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks

So overall, I don't think they're trying to muzzle you, they're just trying to protect their (admittedly weak and probably generic already) trademarks.

Just my 2c.

You've become popular and successful. I'm not shocked they're trying this on you.

I, for one, was a complete idiot about the housing market when I ended up in foreclosure, but I'm greatly improved after reading this site for years now faithfully each night when it updates.

If it wasn't for you I think I would've ended up right back in another horrible loan, and been facing a second foreclosure. I'm certainly extremely appreciative you're around.

pfdv says

I don’t think they’re trying to muzzle you

I disagree. The realtor's lawyer did say

I am requesting your confirmation that you understand this matter and will remove our membership marks from your logo and website.

She also said

we do write cease and desist letters to anyone we come across misusing this term.

That does sound like they are trying to muzzle me and it's vagely threatening.

Perhaps I should change all use of "agent" on my site to "realtor" to make it clearer I'm talking about them in particular. On the other hand, it seems there are about 1.2 million realtors and only another 600,000 real estate agents who are not realtors (according to the US Bureau of Labor Statistics). So the clear majority of real estate agents are realtors anyway and realtor is already in common use as the generic term.

Patrick,

So it's time for you to get schooled on the Constitution.

Since you are more liberal, I would expect you to cry for your first amendment rights.

Now here is the funny part, you aren't "protected" for free speech from the lawyers.

The first amendment is to protect your political free speech, from the GOVERNMENT.

That doesn't include private individuals or organizations.

If you were to claim something that isn't true, publicly, you wouldn't be protected under free speech. You would be guilty of
slander or defamation. Which is actionable in court.

I didn't bother to read the whole letter they sent you, but it's totally possible you have to comply with their wishes.

Just cause you have a blog post, and write things publicly, doesn't mean you can write whatever you choose.

You should read the constitution sometime, It will make things more clear for you.

Well, they're not saying "stop criticizing people who sell real estate," they're saying "stop the (alleged) incorrect use of our trademark." Maybe one of your readers is a trademark attorney who could give you some advice. One option might be to add the following disclaimer at the bottom of your webpage: "Realtor is a registered trademark of the National Association of Realtors. Patrick.net is in no way affiliated with the NAR." and consider using the ® at least in the banner. That way you could say "Look, I'm using it as you have requested, even though I think it is generic! I'm even attributing it to your organization so there's no confusion!"

Anyhow, you really need competent legal advice. Identifying them specifically in that way might have other consequences.

The National Association of Realtors are champions of issuing disinformation to the detriment of consumers. They have paid for the privilege of making themselves intertwined to legitimize their pyramid schemes through political contributions to corrupt politicians and paying off law enforcement and judges.

I would suggest that you lay off of them. They do possess financial resources and are known to be immoral and definately unethical.

I believe that Realtors are just parasites. They were successful when their BS does not kill the host which is the public at large, but as dinasaurs, they have become obsolete and as we all know, are now killing the hosts.

One thing, Patrick, is that you don't have to be a member of NAR to be a licensed real estate agent.

The safe harbor of trademark law does require you to be *correct* in using the trademarked term.

Eg. if I complained that "googling" sucked when using bing, Google would have cause to shut me down.

I used to get those 'cease and desist' emails and letters and even served to me by underpaid college students on part time jobs. I can only tell you what I was told to do by a well known constitutional lawyer and media representative. You can be sued for anything.

They don't want you talking about them so don't use the words they tell you not to use. Don't respond to their letters. Because if you do then they can use your response to prove you knew what you were doing if you or your writers 'accidently' use those words and claim your your purposely damaging them.

If you use part of their banned words i.e. real-tards, they can claim you are still trying to damage them and are being mean and naughty about it and making fun of them too boot. Can't have that as they can seek even more damages, get restraining orders against you, have you declaired a cyber Stalker and have you wisked away to jail or mental hospital.

Judges are getting real tired of cyber bullies and cyber stalkers. Big corporations with lots of time and money and political contributions can easily shut down your site and you very fast and are doing it to many blogs, forums, and other types of media personalities and products.

Oh, if you Register or trademark certain words or phrases that are similar in sound or look or definition to those banned words, a judge can say your are still violating and damaging the company and give them your trademarked words even if you paid for them.

Beef up your Denial and Disclaimer Statements, don't use their words the don't want you to use, read and edit any comments made on your sight, and have fun. Lastly, you may want to invoke a disclaimer phrase that says you use satire and parady in your writings and blog which are Supreme Court Stamp of Approval uses of banned words. though I still wouldn't use them as the big, bad corporations usually don't have a sense of humor and would sue you regardless of your constitutional protections.

Just understand you and not the only one getting those type of letters. I'm just surprised you haven't been sued or issued letters of restraint already. Have fun. Prophet Atlantis of Olympia, WA

Don't you think it is interesting that almost every time a local "Realtor" TM ( NAR VERIFIED) is arrested, indicted or found guilty, the local news media say real estate salesman or "broker". I wonder why the NAR doesn't seem to mind that MEMBERS of their organization don't appear to be following those well touted "ethical principles" "excusive ONLY to NAR" members. Yeah right! Come on down to visit my neighborhood where the "Realtards" (TM) will refuse to let sellers list because there are "too many" listings already. IMHO (TM) --The FIRST thing we need to do is SEPARATE MLS services to an "arms length" INDEPENDENT service, only in this way will Realtards (TM) no longer be able to as control the market like they have been doing for too many years. Look at the carnage all around us----dilapidated former "country estates" (800 sq ft starter hovels). If a Realtard (TM) ever uses the word "home" (TM) one more time, I think I will "share" (TM) some "ideas" (TM) with them in "private" (TM)?

Can you image tricking someone to pay over $700,000 for this "estate in an exclusive area"? Now at over 300 DOM they can't give it away for less than 40% of that. But who extracted the 6.5% each time on BOTH sides (buyer and seller?--- Twice. More went to the Realtard (TM) vigorish than to the "house" (TM). Copyrighted PHOTO NOT from the MLS. The selling photo looks like Disneyland ---with a fine print---this is what it COULD look like? LOL ROFL LMAO- Good God Amighty (GGAM) --How can these people (REALTARDS-TM) believe their own lies?

I am happy for you no mater how somebody is upset for the truth you told, you may need to talk to a lawyer see how you can protect yourself or bring them to court if necessary, I mean, if you can make them pay their price for telling lies

When you are up against the Big Guy, expect to lose. There was a restaurant in Santa Cruz CA called McDharmas. It was fast food, but it was a healthy food alternative to the crap served at the corporate McDonalds chain. A fight ensued. Guess who won?

http://www.dharmaland.com/history/sentinel.html

Isn't it a little late for them to be coming after you. Here we are four plus years into the crash now. I guess they have nothing better to do with there time. Isn't there a good RE attorney on this board that can advise you?

I had no idea that 2/3rds of "used house salespeople" were actually Realtors. So then we can put 66% of the housing crash blame on Realtors. Good to know. Thank you Patrick for your hard work.

Patrick, never give in on the capital-letter nonsense; they can be realtors, and they can be Realtors, but they can never demand to be called REALTORS®. The rules of the English language -- namely, the one that states that only acronyms and initialisms are written in all capitals -- trump any ridiculous self-serving corporate guidelines.

She's a fine one to be lecturing people about usage. I notice also that she's got a period at the end of her first sentence despite it being a question. Perhaps we should create "a short video that we use to educate the staff on correct question mark use."

To the NAR:

I guess ASSHATS® was already taken?

Sincerely,

Rock in Key West

watsusay says

I would suggest that you lay off of them. They do possess financial resources and are known to be immoral and definately unethical.

California seems to have good laws protecting freedom of speech from frivolous lawsuits, exactly to protect individuals against organizations with a lot of money. I wonder how well those laws work. I may find out.

Hey Patrick,

Love your Site!! How about the term "Realtwhore" ? I think it fits in most cases and it rolls off the lipps rather nice . Keep telling the Truth & doing what you do.

B-RAD

I can see their point here, your using there trademarked logo in your logo. They could have some legal recourse here. They can't stop you from talking about Realtor's in forum postings, since using Realtor in forum postings is covered by free speech, but the use of there trademark in your logo is an infringement of there trademark. Try changing your logo to Patrick R Us (backwards R) and see how fast Toys R Us hits you up with a cease and desist court order. I say your playing with fire here ignoring them, change your Logo to say, "What Real Estate Agents will not tell you". Is this really worth get dragged into court and pay thousands in lawyers and fees over this? Possibly even a hefty award, given to the NAR in damages. Do yourself a favor and just change your logo, it's not worth the grief they can cause you.

Damn right! I’m talking about THEM.
That’s “nominative use” for sure.

You can google fair use all you want, the next thing you will be receiving will be a court summons from the NAR. If you don't think they will aggressively pursue this in the court your sadly mistaken. So if you don't have a lots of time and a couple of million laying around you don't need, I was highly recommend complying. They will of course bring up the letter they sent you in court that they tried to inform you of your violation of there trademark and you ignored them. I was thinking that you could write them an apologetic letter telling them how sorry you are and you'll comply immediately, but I think that's a bad idea, could be used later in court against you in a lawsuit, I think it's just better to just change your logo and be done with it.

California seems to have good laws protecting freedom of speech from frivolous lawsuits, exactly to protect individuals against organizations with a lot of money. I wonder how well those laws work. I may find out.

Don't delude yourself, they will take this all the way to the supreme court if they have to, regardless of what California laws say.

APOCALYPSEFUCK says

Realtors® are no more or less protected by anything than Pederasts®, Arsonists® or Nazis®

I beg to differ, none of these other words have a powerful lobbyist organization with deep pockets behind it. I say if every visitor that visited this website, ever gave $10 to Patrick, it wouldn't be enough to cover his legal expenses if they take him to court.

=Oh. My. God.= This blows me away. Patrick, play it safe and don't mess with these people. They've got the deeper pockets.

Personally, I vote for "used house sales people." I laughed at that one as it was soooo true!

Hola Patrick,

First, thanks very much for all of the information you provide. I know you spend a LOT of time on this website, apparently without compensation for your efforts. You are an amazing guy.

Second, don't let the Big Boys provoke you into a fight you cannot win. They know exactly what they are doing, and as said above, it does not matter if you are right or wrong... it only matters that they can force you to waste huge amounts of your time, endure maddening stress, and cost you money out of your pocket. If you allow yourself to outraged and defiant of their "taunts" (legal letters), they will beat you with an ugly stick. You have recieved some good advice above... find out what words you need to change, where disclaimers will let you off the hook, etc.. From personal experience, it is not worth it to fight them, and if you fight on their terms they will win.

Believe me when I say I understand the outrage and the desire to lash back. Be smarter than they are... play the game by the rules and you can still say and do whatever you want!

Email Morgan Spurlock, he trashed McDonald's in his "Super Size Me" documentary, McDonald's didn't win that one. The posters that say the corporations always win... as sad as it is to say, are mostly right.

I had a similar trademark brush with a site I started in 2001, attcapital.net which was an acronym - 'About The Town Capital' I had a building and business in an enterprise zone in Baltimore City, MD, the site was to educate potential business owners, about financing opportunities etc to relocate their business within the enterprise zone, and assist them with contact information, programs available, etc.

I was served by AT&T 2 months after site was online. I never knew they had a subsidiary At&t Capital. I started the game, depositions ect. Quickly, I realized how the game was all stacked in their favor. Their lawyer showed me an accounting of the cost so far, that at&t had paid prior to depositions; $36,000+, and that I would be afforded the opportunity to cease activity, and relinquish the trademarked domain name. If I continued, and lost, the cost could easily rise to 6 or 10 times that amount, of which a judgment would be entered against me... I buckled... game over.

I realize, that my situation was completely different, but the source of funding that these giant pricks have, is all common, and extremely deep pocketed. 20/20 hindsight, if your site was held as a LLC, you could have gone hard against them, then if it turned bad, just let it fold not owing a dime. The ultimate parody! Leaving Realtors, and lawyers holding an empty feces filled sack!

junk says

I realize, that my situation was completely different, but the source of funding that these giant pricks have, is all common, and extremely deep pocketed. 20/20 hindsight, if your site was held as a LLC, you could have gone hard against them, then if it turned bad, just let it fold not owing a dime. The ultimate parody! Leaving Realtors, and lawyers holding an empty feces filled sack!

He makes a good point here, if you haven't already done so, create a Limited Liability Corporation (LLC) to protect yourself for lawsuits in the future. If you want to make Patrick.net your business, then treat it like a business and protect yourself accordingly. It's doubtful creating a LLC now would be of any benefit during your current crisis, since it didn't exist before the violations occurred, but could protect you in the future.

I saw a website mentioned here with a post this weekend that was (unintentionally) very funny:

"All I want for Christimas is...

.... my Short Sale to close.

This year a lot more homeowners and homeowners to be, have added a new wish to their Santa's wish list at Christmas:

•They're wishing for their Short Sale to close and avoid foreclosure.

Put aside the customary wants of years gone by asking for a new Plasma TV, a new car, a set of pots & pans, a new outdoor grill, sterling silver bracelet, a Lazy Boy lounge chair or maybe a new drill or a new tie! This era seems to have given rise to a lot more distress in our lives and to simply avoid foreclosure is high on many people's lists of what they want for Christmas.

I would think that between now and the end of the year we'll see a push to get Short Sales closed so Lenders can get the bad debts off their books before 2010 ends. I have many Short Sales that I'm negotiating and hoping that this to be the case for my Sellers. It's a win win for both the Seller and the Lender." See ActiveRain

I am too lazy (busy) right now to properly annotate this, but simply insert the word/phrase "commission [for me]" wherever a benefit, good, desired goal, or 'win" appears. And speaking of appearances, no industry is as appearance-obsessed as real estate, yet self-awareness is rarely a quality that comes to mind, except by the absence thereof.

This is great! Hopefully this will go to court. Even supreme court! Maybe make the news! Like they say bad press is always good press. I think their attempt to shoot across your bow may have just opened a door they wish they would have left alone.
This is a clear sign of desperation. Go to war.

Prophet Atlantis says

They don’t want you talking about them so don’t use the words they tell you not to use. Don’t respond to their letters. Because if you do then they can use your response to prove you knew what you were doing if you or your writers ‘accidently’ use those words and claim your your purposely damaging them.

100% truth. I noticed in those emails the second thing they were seeking from you (beside compliance) was a confirmation that you understood their vague complaint. Your response to Mary was funny, but unfortunately it gives the lawyers at NAR some ammo. BTW, is there anything lower than being a lawyer for NAR? Isn't that kind of like being the offspring of Hitler and Queen Mary I?

took them this long to figure out? I guess the wrong person probably watched those nightline interviews . Now Patrick has awakened a sleeping giant.

I thought 'the mafia' would be generic by now. Everyone will know who you mean if you just say 'organized crime'.

Odbrush says

This is a clear sign of desperation. Go to war.

Wars cost money. In my opinion even a victory would be an empty one. Hundreds of thousands of dollars in lawyer and court fees, not to mention lost wages just to be allowed to use a single word however you want. Even if Patrick schools himself in law, defends himself and wins, it not going to be cheap in any sense of the word.

P.S. If you going to piss in the wind, why not change the site's name/logo to "Mcpatrick R Us, What scumbag Realtors will not tell you. Billions served." make sure the R is backwards.

Groucho had the same issue http://www.chillingeffects.org/resource.cgi?ResourceID=31

Only in America do we have free speech and yet allow Lawyers to harass people for the use of words.

I stand firm in my statement that America's modern aliments and the decline of Democracy, is attributed to the lack of good solid Ass beatings. Societal repercussions gets more illegal every day, and a more serious crime.
Coincidence? I think not! The author of that email could use a good trashing before he tries to shat on other peoples liberties.

This is just an attempt at bullying. They don't have case, a very frivolous attempt while at it too.