On February 8th, the National Association of Realtors will defend its servicemarks Realtor™ and Realtors™ to the Trademark Trial and Appeals Board of the U.S. Patent and Trademark Office. The question to be decided by the board is whether or not the NAR's servicemarks are generic or words that can be protected as a trademark.

The petition, filed in 1998, to cancel the trademarks has been brought by San Francisco attorney David Barry on behalf of his real estate agent clients, and is the first of actions he plans to take to dismantle what he and his clients allege to be the NAR's monopoly on MLS listings.

This is hardly a nuisance suit, and the NAR is taking the petition and its potential consequences seriously, according to resident NAR counsel Laurene Janik.

Find out what the NAR's defense will be in this exclusive interview with Ms. Laurene Janik and Agent News publisher Blanche Evans.

B.E.: What are the issues on the line?

L.J.: Mr. Barry's client has petitioned to cancel the NAR's trademark on the terms Realtor, Realtors on the basis that the terms are generic.

B.E.: What are the consequences for the NAR and its members?

L.J.: Anyone who sells real estate could call themselves Realtors whether they are members of NAR and abide by the code of ethics.

B.E.: What is the NAR's defense going to be?

L.J.: The petitioner has the burden of proof and they have to prove that the terms are generic in a trademark cancellation proceeding. Mr. Barry did conduct a survey of the public, and it was poor in our view, with many flaws, and he didn't know what a membership mark is. That is special, and it is different from other trademarks; it indicates membership in an organization.

This is a federally registered membership mark, which is a type of a trademark - its meaning is to indicate membership in the organization.

B.E.: What do Mr. Barry and his clients stand to gain?

L.J.: He doesn't get damages, but they would have the satisfaction of ruining the trademark of the National Association of Realtors if they prevail.

B.E.: It's more than bragging rights. He says that the NAR has a monopoly on listings that can only be accessed through membership, and he plans to pursue this.

L.J.: I think he is coming late on that issue. It has been decided in favor of Realtors in the New Jersey Supreme Court, in Iowa, in lower Federal Court in New York - a number of jurisdictions have found that it is reasonable to require Realtors to be members to access the MLS.

B.E.: But some states allow non-Realtors to access member-run MLSs.

L.J.: We have lost in Florida, Alabama, and Georgia where they allowed a decision out of Atlanta, Thompson vs the Decalb Board of Realtors, in the fifth circuit, they allow non-Realtors to participate, and you have other jurisdictions where they allow them to participate voluntarily. Some use it as a recruiting tool to let them to join, it is an option at the local level. In Maine there is a statewide MLS, and they allow nonmembers in the MLS and other local associations to participate.

B.E.: What about your study and how does it differ from Mr. Barry's?

L.J.: We have also done a study - it was done among real estate licensees. The word Realtor(s) is a membership mark, and the ones who know what Realtor means are the ones who are eligible to be members, and they are licensees. The study was to find out if they knew what the term meant, and 85 percent of them knew.

Mr. Barry surveyed the general public. We are not selling membership to the general public.

B.E.: How seriously are you taking this petition?

L.J.: I am taking this very seriously. There's a lot on the line. There is a lot of pride in the term Reatlor(s), and it sets our members apart from the nonmembers. They commit to a code of ethics, and it is an important term to them.

B.E.: What is this costing to defend?

L.J.: It is costing into the six figures to defend it. I don’t know what it is costing him.

B.E.: What happens if you lose?

L.J.: We lose the term. We still have our block logo, to denote our members. Barry isn't challenging that and that is another mark that denotes membership in the organization. It would take on added importance.

Published: February 7, 2002

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