The NAR is defending itself on a number of fronts lately.

Not only is the Department of Justice looking into whether Realtors should have the right to protect their listings from misuse by other members within their own MLS organizations, but the NAR is facing yet another challenge to its servicemarks REALTORŪ and REALTORSŪ.

For the second time, California attorney David Barry has petitioned to cancel the NAR's servicemarks with the argument that the NAR cannot trademark a generic word. Barry was unsuccessful in February 2002 in petitioning to cancel the NAR's servicemark, when it was discovered that his client, Arlene Freeman, was a former Realtor. Realtors, under membership rules, are ineligible to bring challenges against the NAR because they already agreed to the terms of membership, which includes recognition that members are Realtors, a designation only obtainable as a member of the National Association of Realtors.

But Barry lost no time in getting another client who wished to challenge the NAR's Realtor servicemark. Jacob Zimmerman has never been a Realtor, but he purchased 2000 domain names as a student with the word Realtor in them with the hope of making money selling the URLs. Since he hired Barry, Zimmerman has graduated from Cornell University, and he operates a service for the sale of restaurants, a kind of multiple listing service for restaurants.

"He is in the business of working with the Internet and information, and his clientele is brokers," explains Barry.

Zimmerman's investment is only worth something if the word Realtor can be declared to be generic and the NAR's servicemark ruled invalid. Otherwise, certain rules of use preclude NAR members and others from using the word Realtor in certain ways, such as combining the word with a geographic area. For example, a Realtor could have a Website called BlancheEvansRealtors.com, because that is a company name of a Realtor. But Blanche Evans, the Realtor, would not be allowed to operate a Website called DallasRealtors.com.

With a lot at stake, both sides are hoping for success.

Laurie Janik, general counsel to the NAR, says, "We are hopeful the TTAB will adopt NAR's arguments and preserve the Association's rights to the terms REALTORŪ and REALTORSŪ."

Barry says he expects to prevail.

"The board will do what it always does," he says, "how administrative law judges see their cases, and this is a very easy case."

Barry says he plans to cite a case known among trademark attorneys as the Magic Wand case. A car wash company called Magic Wand trademarked the word "touchless" because of its system of cleaning that didn't touch the car. Competitors challenged the trademark, calling it generic.

The judges decide their cases based on who the relevant customer is. In the Magic Wand case, points out Barry, one customer is the market for the "touchless" equipment and supplies, and the other is the people who take their cars to the car wash to use the "touchless" equipment to wash their cars.

How does the judges tell who is the relevant customer? "We go to the registration certificate and what do they define to be the market for services," explains Barry. "We found it wasn't for the equipment that was sold to the operators -- it was for the services of doing a carwash, so the relevant consumer is the person bringing in the car to be washed -- the public.

Magic Wand's "touchless" trademark was canceled.

In the case of the NAR, Barry believes he can build the same argument based on how the NAR applied for the servicemarks back in 1947.

What does the NAR's registration/application say? Barry says the NAR in 1947 wrote that it is registering the servicemarks to provide brokerage services and that brokers are the relevant audience, but Barry believes he can argue that NAR sells services to real estate agents to sell to the public and therefore, the public is the relevant customer.

Find out what happens today.

Oral arguments will be held today before the U.S. Trademark Trial and Appeal Board (TTAB) at 2900 Crystal Drive, 9th floor, Arlington, Virginia, at 10 a.m.