Sunday, September 8, 2013

The Meshugas of the "REALTOR" Trademark

By Zak Muscovitch.

Let's start with the meaning of the word, "Meshugas" (pronounced Meshoo-gahz"). Meshugas refers to something that is "meshuga". Meshuga, a Yiddish word, refers to something that is "crazy, foolish, or senseless".  Unfortunately, there is no monopoly on the word, meshugas. But there supposedly is, on the word, "realtor".

According to the U.S. National Association of Realtors (NAR), they are the only people who are entitled to use or license the use of the word, "realtor", as:

The term REALTOR® is a registered collective membership mark that identifies a real estate professional who is a member of the National Association of REALTORS® and subscribes to its strict Code of Ethics.

The word however, in ordinary common parlance, of course refers to a real estate broker or real estate agent.  However, the NAR obtained a US registered trademark in 1950, for REALTOR and for REALTORS, referring to what else...real estate brokerage services, etc.

Apparently, it is a "made up" word.  According to The Word Detective, "it all began back in 1916, when C.N. Chadbourn, Chairman of the National Association of Real Estate Boards (precursor of the NAR), declared, “I propose that the National Association adopt a professional title to be conferred upon its members which they shall use to distinguish them from outsiders… the title of ‘realtor’". 

The precise meaning of the word was debated on the floor of the United States House of Representatives, according to The Word Detective; a "Rep. Curry (R-Ca.),  explained that the word “comes from the Spanish words ‘real’ meaning ‘royal’ and ‘tor’ meaning ‘bull’.” According to the New York Times of May 18, 1922, Mr. Raker, shouting to be heard above the uproar on the House floor, responded, “And that’s just what these realtors have been giving us..."

Nevertheless, The Word Detective states that the word invented word simply refers to "the fragment “realt” from “realty” with that dignified agent suffix “or” tacked on."

In Canada, "realtor" is also a registered trademark, but of the Canadian equivalent of the NAR, Realtor Inc., formerly The Canadian Real Estate Association (CREA). They too have a trademark for REALTOR, but only apparently going back to 2005, for of course, "real estate brokerage services", etc. The registration claims that it was used in Canada since as early as 1921, and the registration is a "certification mark", for members comprising; (1) Real Estate Boards and Associations; and (2) licensed real estate brokers/agents and salespersons who are members of Member Real Estate Boards and Associations.

According to CREA,"the term [realtor] is now ubiquitous enough that most people have at least a basic idea of what they think those terms represent." Of course we do. It means, a "real estate agent", doesn't it? Certainly not according to CREA. In fact, they expressly state the exact opposite: 

"The term REALTOR® is not synonymous with “real estate agent” or “broker”. The trademark REALTOR® identifies only those real estate professionals who are members of the Canadian Real Estate Association and, as such, subscribe to a high standard of professional service and a strict Code of Ethics."

Quite remarkably, the CREA exclaims on its own website, that, "You might be surprised to know that both [REALTOR and MLS] are registered trademarks owned by the Canadian Real Estate Association (CREA), and used under license by real estate boards and associations across Canada." Surprised, yes indeed we are, but why on earth would CREA think anyone else would be surprised? Could it possibly be, because it means "a real estate agent", to most average people? 

Although I won't get into the meshugas with the term, "MLS" now, it is worth mentioning that CREA has some very interesting things to say about this word:

"Now let’s talk about the term MLS®. It’s not a noun, or a thing, but an adjective that refers to a standard of service – the MLS® Services – that are provided by CREA members. Local real estate boards or associations license the term MLS® from CREA to use to describe their co-operative selling systems, referred to as MLS® systems." 

Wow, CREA sure has to go to some great lengths to explain to the public that their marks are not words. Most real brand owners don't need to do that...

Interestingly, the Merriam-Webster dictionary ("America's leading and most-trusted provider of language information", says that the word, "realtor" (since when are trademarks in the dictionary? The word, "Pepsi" is not listed in this dictionary, and the word, "coke" is listed as referring to the residue of coal), is a word "used for a real estate agent who is a member of the National Association of Realtors". 

However, in an interesting contrast, the UK-based Collins Dictionary, which is arguably equally famous as the Merriam-Webster one, succinctly states that the word, "realtor" is a simple noun and refers to an estate agent, especially an accredited one, and no reference at all to the NRA or any other governing body for real estate agents. 

Fortunately, somebody once tried to do something about the REALTOR trademark, at least in the U.S. According to Wikipedia, in 2003, a Jacob Zimmerman, who was a student no less, and not a member of the NAR, petitioned the USPTO to cancel the REALTOR and REALTORS trademarks on the basis that they were generic. Unfortunately, he was not successful as the USPTO ruled against him. According to the USPTO decision, upon graduating from Cornell, Jacob was "in the business of buying and selling website addresses containing the word 'realtor' and 'realtors'.

Jacob asserted "that the marks were generic bcause, in common parlance, the words "realtor" and realtors" are synonymous with real estate agent or real estate agents." Jacob further alleged that:

"Respondent’s registrations and trademark policies preclude him from offering his websites to real estate agents: Petitioner has been injured in his business by the continuance of the registration of the “realtors” mark. Potential purchasers of petitioner’s web site are mainly real
estate agents. Many such realty agents are aware of NAR’s threats to file suit against any person using the term “realtors” in web site names, and are therefore unwilling to purchase any of petitioner’s web site names. In addition, realty agents are unwilling to pay petitioner for placement on such web sites as bostonrealtors.org because of the threat by NAR to enjoin the use of such web site names. NAR’s continuing registration of the “realtors” mark has severely lowered the demand for petitioner’s web site names and petitioner's promotional services."

In response, the NAR contended that its registered collective marks are distinctive, not generic. And the three judges agreed. He found inter alia, that,

"The evidence establishes aggressive marketing of these marks and constant policing of media usage of these terms, supporting respondent’s position that it has preserved for the term no small degree of proprietary meaning, even among general news outlets.

Against this backdrop, we find that this record supports a decision protecting the critical interests of the users of these marks within the real estate community. When real estate professionals see and use these identifiers, an entire packet of information is succinctly
conveyed among them. Hence, they should be permitted to continue making knowledgeable and informed decisions based on the source-indicating functions of these marks. We find
that this result is entirely consistent with the holding in the Bayer case.20 Furthermore, there is insufficient probative evidence in this record on which we could base a
finding as to the perceptions of the “Realtor marks” among members of the general public.
Accordingly, based upon all the evidence in this record, we find that the marks REALTOR and REALTORS continue to function as collective service marks and have not become generic terms."

So, we can see that at least according to the NRA and CREA, the word, "realtor" is not a noun or a regular descriptive word, but a trademark and certification mark, respectively. But CREA is not content with that; Article 26 of its code of ethics (called the "REALTOR® Code", of course), CREA places strict requirements on its usage, even by its own licensed members. For example, according to the CREA code of ethics, aside from requiring important things like "protecting and promoting the interest of clients" (Article 3), "discovering facts pertaining to properties" (Article 4),  and "disallowing a personal interest in a property without disclosure" (Article 11), realtors are forbidden from the following:

"26.1 A REALTOR ® shall not challenge the validity of CREA’s Trademarks.

26.2 A REALTOR® shall not use any of CREA’s Trademarks in domain names, e-mail addresses or metatags unless specifically authorized to do so by CREA policies.

26.3 CREA’s Trademarks are not to be used as hypertext links in Internet websites.

26.4 A REALTOR ® shall not use, display, or attempt to register as trademarks any word, phrase, term, initials or design marks that incorporate, or are confusingly similar to, any trademark of CREA.

26.5 A REALTOR ® shall not incorporate into corporate or trade names any trademark of CREA or any confusingly similar mark."

From the above, one wonders what an accredited real estate agent who is designated a "REALTOR", can do other than perhaps whisper the term in the ear of a client.

Which brings us to domain name disputes. According to UDRPSearch.com, the NAR has brought a total of 7 UDRP cases involving domain names comprising the word, "realtor". It won four cases incoluding gayrealtor.com and realtor.biz, terminated two others, and lost one; realtors.biz. In the latter, it took a Korean UDRP panelist, Young Kim, to point out to the NAR that the term, "realtor" is an ordinary noun and means a real estate agent, and is also a term used by many people without referring to the complainant's trademark:

"The term “realtor” is also listed in the dictionary as an ordinary noun to indicate a real estate agent, in addition to meaning the Complainant and there are multiple companies and persons other than the Complainant that have registered and own multiple domain names and trademarks related to “realtor(s)”. Namely, it is thought that the term “realtor” may have been recognized only as the trademark of the Complainant at first but then its use became ordinary and it gradually lost its function as a trademark and has become an ordinary noun. Therefore, there is not enough proof to say that the Respondent knew of the existence of the Respondent and then registered this Domain Name with the intent of acquiring unjust enrichment from it."

Unfortunately, that was the very last case that the National Arbitration Forum had Mr. Kim adjudicate, as shown in a search of the NAF database....

In my view, the "REALTOR" mark is ripe for cancellation, since it is so widely used in my opinion, by people who do not use it as a trademark whatsoever. It has become generic in my opinion, despite the efforts that have apparently been made by organizations such as CREA and the NAR. In my opinion, it is meshuga to pretend that "realtor" is some kind of super-exclusive professional designation, when in reality it likely just means a real estate agent. What does it accomplish? Nobody is allowed to act as a real estate agent unless they are licensed anyhow, so why go to such lengths to protect a mere word? Doesn't make any sense, other than if one considers that it may be a mere power-grabbing tactic by the real estate associations.











3 comments:

Anonymous said...

'Meshuga' is Hebrew, 'Mashugana' is Yiddish.. fyi.

Anonymous said...

the mark realtor can be cancelled however it will take some body of evidence. legitimate national polls
to support generic meaning. legal evidence the mark is not distinctive. It is confusing to the public. evidence the mark realtor is not the sole point of origin.

TracyM said...

I also received warning from NAR regarding my domain name realtorforum domian name and website :(