The membership marks REALTOR® and REALTORS® have been safely registered with the U.S. Patent and Trademark Office for decades, but recently, several challenges to the trademarks have come before the U.S. Trademark Trial and Appeal Board.

Challengers, such as former Realtor Arlene Freeman, and Jacob Zimmerman, a San Francisco student, have brought petitions before the Board to cancel the NAR's trademarks on the grounds that the words Realtor and Realtors are generic in use. Freeman was ruled against by the three-judge committee on the doctrine of licensee estoppel, which means that as a former member of the NAR, Freeman is precluded from challenging the validity of the NAR's registered marks. The issue of whether the terms are generic were never ruled upon, because Freeman's former membership in the NAR invalidated her petition on the technicality.

But that leaves room for others to challenge the NAR's trademarks on genericism.

Zimmerman, according to an informant close to the case, has never been a member of the NAR, so the doctrine of licensee estoppel would not apply in his case. As the owner of over 2000 URLs which include the word Realtor, Zimmerman hopes to prove the words Realtor and Realtors are generic. As long as the NAR holds the words as trademarks, others, including Zimmerman, may not appropriate the words for personal gain, which renders Mr. Zimmerman's domain name investments worthless. In fact, members of the association, much less the nonmember public, are precluded from using the words Realtor or Realtors in certain ways in their advertising and in domain names.

For example, said NAR attorney Mike Thiel in an earlier Agent News story, "Our members are, of course, entitled to use ‘Realtor’ in their names, providing they do it correctly."

"Proper use would be something akin to: www.JohnSmithRealtors.com. Improper use would be something akin to: www.EvanstonRealtors.com, unless the site was posted by the Evanston Board of Realtors. We don't designate a specific Realtor for a geographical area," Thiel explains. "So we consider that an improper use."

David Barry, the attorney who represented Freeman is also the counsel for Zimmerman. He hopes to prove to the court with a different petitioner that the NAR trademarks are generic.

"The Zimmerman petition was first filed with the U.S. Trademark office in August of last year," explains general counsel to the NAR Laurie Janik. "From what we have been able to learn, Zimmerman is from the San Francisco area but is currently a student at Cornell University (NY) studying restaurant management. He registered a lot of domain names that include the term "REALTOR" and was trying to sell them.

"Zimmerman still has to prove that the term is generic," continues Janik. "I believe he will be arguing that the relevant universe to measure the meaning of the term is the general public. We intend to argue that as a membership mark, the relevant universe to determine whether the mark is generic or understood to have special significance is potential members. In other words, the proper test is whether those individuals who are eligible to be members understand the significance of the terms."

Published: July 5, 2002

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