According to intellectual property specialist Steven Weinberg, an associate of Greenberg Traurig LLT, one of the largest law firms in the nation specializing in real estate, data has become the most valuable property of our age.

"This is an Information society and a very competitive environment," says Weinberg. "The ownership of data is everything. Online brokerages are heavily involved in the negotiations for and the collection of data. Because of that, the general consensus is that data is proprietary. 'If you want to use it, you had better pay me for it.'"

Because of his background in real estate and intellectual property law, Weinberg has taken a keen interest in the copyright infringement suit filed by Cendant brands Century 21, Coldwell Banker, and ERA against LendingTree. The Cendant brands allege that LendingTree used the brands to "provide the illusion that LendingTree participates in a network of real estate companies that includes Century 21, Coldwell Banker, and ERA," according to the complaint.

Editor's note: The PDF file of the complaint has been minimized, but it is still a large file. Please be patient during downloading.

"This is a really interesting case as there are legitimate arguments on both sides," observes Weinberg, "and ultimately the case is going to have a significant impact on Websites. It's a test case for the Internet because it is going to test what people are going to understand when they see names of other parties on hyperlinks on a Website. There is a general sense that if you use someone else's logo or icon, you need permission, and if you aren't using a logo, the use of the other party's name is still something that requires permission. Others say that when you use another party's name, all you are doing is providing information, and that is why this case becomes important."

What is the Cendant brand lawsuit against LendingTree attempting to establish?

"It comes down to where people are using other people's names in a way that provides information to consumers or confuses consumers that there is an affiliation of some kind," replies Weinberg. "The law is broad, and if the consumer is using Lending Tree services under the belief that it has an affiliation with Century 21 and the others, then it has stepped over the line. So the question is - are people being confused or provided with information?"

What will be LendingTree's defense?

"I haven't read Lending Tree's answer," says Weinberg, "but their view is that they are not causing the public to believe that they are endorsed by these companies. There are lots of Websites that are called portals that act as directories or depots for people to find links to places that will give them information. One will find on a number of corporate sites sections that have nothing but links to related sites.

"In a case like this, there is Internet user convention," he continues. "I mean - people are used to free information. If you are shopping and looking for a brand and see someone using a similar brand when you get on the Internet then there is an argument that having someone else's link on a site is not a trademark issue, but the way you use the link is going to create the impression that Century 21 gave permission to use that link, then you have crossed the line into infringement."

Weinberg also comments on LendingTree's use of the Realtor mark.

"Use of the term Realtor is also at issue," says Weinberg. "It's a registered trademark. At the moment it has all the presumptions that go with a registered trademark. It is true that there are ways to use a registered trademark without liability, but it is a fine line. You can use it if you are providing information. There may be an argument that says 'For a list of Realtors, click here', that may be a non-infringing use, but the way the word Realtor is used and whether or not the online website is using the icons of the Realtor brand or something else that makes people think this is an authorized site that could lead to liability."

The NAR gave permission to LendingTree to use the Realtor mark when it believed that the mark would not be used in a commercial manner, according to NAR's general counsel Laurene Janik. Can the NAR take back permission?

"When one has a trademark you can license others to use that name and there is a contract that says what a licensee can and can't do, and if the trademark is used in an infringement, then permission can be taken back. If the agreement was oral, it is hard to know what permission was given and what wasn't. One would assume that if permission was given, it was hard for the NAR to assume what people are intending or not intending to do."

The NAR's general counsel alleges that the attorney for LendingTree has raised doubts that the Realtor mark is a true service mark. Doesn't the fact that the company asked for permission demonstrate that it recognized the Realtor mark as a service mark, and wouldn't it be difficult to come back now and say it isn't a valid mark?

"The NAR has started spending more money trying to prevent the name from becoming commonly used," says Weinberg. "There are various problems that licensees can't challenge the marks if they have accepted a license."

LendingTree is not a member of the NAR, but some principals in the company are, such as managing brokers. Would the fact that these LendingTree principals are members of the NAR prevent LendingTree from challenging the service mark?

"If they asked for permission, then it's hard to come back and say they never really needed it," says Weinberg. "The law breaks down to credibility - what makes sense?"

Is the Cendant brands VS LendingTree case likely to go to trial?

"The vast majority of cases get settled out of court," suggests Weinberg. "Very few cases get to trial, and that trial is at least a year away."

What is likely to happen at the preliminary injunction?

"The preliminary injunction," explains Weinberg, "is a request of the court that says 'We can't wait until trial to have this decided. As long as there is confusion, we are being harmed in a way that money can't satisfy. We need the court to intercede to stop the use of our trademarks.' A preliminary injunction is an extreme remedy and the judge has plenty of latitude to decide how to sculpt the injunction. A judge can say 'You can't use the names in A,B, and C ways but you can use them in X,Y, and Z ways that are not infringing. A clever judge will split the baby in this way to get the parties to settle."

Will the court case go the way the preliminary injunction goes?

"In order to win a preliminary injunction," says Weinberg, "the party seeking one has to show it is likely to win a trial, and it has to prove that the harm is worse than to the other side. The loss of a preliminary injunction is a good indication of which way the case will end up - especially if it is in front of a judge without a jury."

Published: June 25, 2003

Use of this article without permission is a violation of federal copyright laws.

Blanche is a renowned author of five real estate books. Her newest, Bubbles, Booms and Busts: Make Money In Any Real Estate Market, McGraw-Hill, was rave-reviewed by The New York Times. She was also selected from hundreds of real estate experts to contribute to Donald Trump's book, Trump: The Best Real Estate Advice I Ever Received: 100 Top Experts Share Their Strategies, Rutledge Hill Press, and is featured on page 68. Order Now Review - Honors In 2006, Blanche was selected among scores of candidates to author two consumer real estate guidebooks for the National Association of Realtors: The NAR Guide to Home Buying, and The NAR Guide to Home Selling, Wiley & Sons. She is currently planning two new books for the NAR and its members.       Known for her keen insight into real estate industry issues and for her ability to make complex subjects easy to understand, Blanche is a sought-after keynote and continuing education speaker. Real estate organizations from MLSs, to brokerages, to franchisors, to associations hire her to provide up-to-the-minute analysis of real estate industry news and advice on how to improve revenues. Her passionate delivery, peppered with stinging wit, is a huge hit with audiences and fans. Don Klein, CEO Greater Nashville Association of Realtors, Blanche Evans, Richard Courtney, president 2007, GRAR "The GNAR membership meeting last week featured Blanche Evans as the keynote speaker. Her comments and insights resonated extremely well with those in attendance and we have had many requests for copies of her PowerPoint Presentation. She was a terrific part of the membership meeting and convention program!" - Don Klein, CEO Greater Nashville Association of Realtors Coverage from WSMV, Nashville - 8-14-2007 That Interview Guy - Get Inside The Head Of Today's Generation 2007 AE Institute Session - To purchase 2006 AE Institute Session - Parts 1 2 3 4 5 6 7 8 9 HouseValues Mastermind call - Parts 1 2 Blanche's fireside chat with Jeremy Conaway, HAR - Click here. For more articles by Blanche, click here.