The largest trade association in the country is the National Association of Realtors and individuals who belong to the group are known by the trademarked term "Realtor." But what if the term "Realtor" is used so generally that it can no longer qualify as a trademark?

That's the core question which will be argued February 8th when the Trademark Trial and Appeals Board of the U.S. Patent and Trademark Office will meet in San Francisco to determine whether the term "Realtor" is generic and thus not a word which can be protected as a trademark.

"A trademark," says the U.S. Patent and Trademark Office, "is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms 'trademark' and 'mark' are commonly used to refer to both trademarks and servicemarks.

"Trademark rights," says the federal agency, "may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark."

If the court system rules against NAR, any real estate licensee -- whether a member of NAR or not -- would be able to describe themselves as a "Realtor."

"The term 'REALTOR,'" says NAR, "identifying real estate agents as members of the National Association of Real Estate Boards and subscribers to its strict Code of Ethics, was devised by Charles N. Chadbourn, a past president of the Minneapolis Real Estate Board, and was first used to designate members of the Minneapolis organization. The Minneapolis Board gave all rights to the word 'Realtor' to the National Association in 1916.

"In 1949 and 1950 respectively, the Patent and Trademark Office registrations for the term REALTOR® and the REALTOR® emblem were approved. Dictionary publishers began to list the definition of 'REALTOR' as a member of the National Association in 1967.

"In 1974, the name of the National Association of Real Estate Boards was changed to the National Association of REALTORS®."

But not so fast, argues David Barry, a California attorney who filed suit in 1998 to cancel NAR's trademarks for the terms "Realtor" and "Realtors."

"The ground for my cancellation petitions," says Barry, "is that the word realtor is generic, as understood by buyers and sellers in the real estate marketplace. Under the U.S. trademark law -- the Lanham Act -- no one is permitted to obtain or retain a trademark that is generic.

"We hired a national survey firm that conducted a telephone survey of individuals who had been in the market for real estate in the past year, or expected to be in the market in the coming year, to get their views of the word realtor. Ninety percent of the survey respondents believed that the word realtor was generic, not a brand name."

In contrast, said Barry, when asked about "Citibank", "Allstate," and "Century 21," more than 90% of those surveyed identified such terms as brand names.

"In cancellation proceedings before the Trademark Trial and Appeal Board, a division of the U.S. Patent and Trademark Office, a trademark holder need to show that the trademark is recognized by at least 50% of the survey respondents as being a brand name, or the trademark is cancelled. Thousands of trademarks are cancelled each year by the TTAB.

"In this case," said Barry, "only 10% of the survey respondents recognized the word realtor as a trademark, far below the 50% required for NAR to keep the mark."

Laurene K. Janik, NAR's General Counsel, told Realty Times that NAR has defended its exclusive use of the term "Realtor" and has even gone to court over the matter.

"While NAR's trademark protection program views litigation as a last resort, NAR has initiated litigation in the past against non-members who represent themselves as REALTORS. In the past 5 years, NAR sued a former member in federal district court in Iowa for unauthorized use of the mark. The defendant agreed to cease use of the mark as part of a settlement agreement."

Another case, however, remains outstanding. A Massachusetts licensee sought to trademark the term "surrealtor." NAR challenged that trademark application, and the "surrealtor" applicant then sought to have NAR's trademark removed on the grounds that the term "Realtor" was generic and therefore invalid.

This proceeding, says Janik, has been suspended until the trademark trial in San Francisco has been resolved.

"NAR," says Janik, "believes its mark REALTOR has achieved wide-spread recognition and value among real estate professionals as an indicator of membership in the REALTOR organization and commitment to NAR's code of ethics."

A decision by the trademark court is not expected to be announced until several months after the hearing is completed.

Published: February 5, 2002

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