The National Association of Realtors' attorneys squared off with California plaintiff's attorney David Barry in the battle over the trade organization's servicemarks REALTOR® and REALTORS® yesterday when oral arguments were held before the U.S. Trademark Trial and Appeal Board (TTAB) of three judges at the TTAB's offices in Arlington, Virginia.

Each side got to present arguments for approximately 25 minutes. In attendance was NAR leadership including Walt McDonald, Terry McDermott, Bob Goldberg, NAR counsel Laurie Janik and Mike Thiel.

The judges may not decide the matter for weeks or months, but at stake is whether or not the NAR can protect the use of the word Realtor(s).

According to both sides, the judges will decide whether to uphold or cancel the NAR's servicemarks Realtor and Realtors based on "relevant customer."

Plaintiff's attorney David Barry contends that the trademarks should be canceled because the words Realtor and Realtors are generic. The NAR contends that the use of the words is for members of the organization.

Barry contended that the popular and judicial media have used the word generically for decades. "My legal database found it was used 10,500 times by Supreme Court judges, circuit judges, and others dating all the back to the 1920s," says Barry.

"I brought it aloud to them, that the courts want to look at who buys the brokerage services, the owners of real estate," says Barry.

The NAR's attorneys, Jeffery Handelman and Nicholas De Latorre, with Chicago firm Brinks, Hofer, Gilson and Lione, argued that Barry's client, Mr. Zimmerman wants to "fish in the NAR's pond."

It is Mr. Zimmerman's intention to sell 2000 domain names featuring the words Realtor and Realtors. He purchased the domain names several years ago with the intention of selling them at a profit. One reason why so many of the domain names were available is that NAR members are not allowed to use the words Realtor or Realtors in their domain names if the domain name points to a location instead of a company name. The NAR attorneys insisted that if Mr. Zimmerman prevails it would cause confusion to NAR members.

While Barry insisted that the relevant consumer public is the homebuyer and seller, NAR insisted it is brokers and agents. Barry made the point with historical data that the terms Realtor and Realtors were used generically for decades before 1947 when the NAR applied for its servicemarks. NAR rejoined that 1947 was the earliest it could apply for servicemarks due to the Lanham Act which went into effect then. The year 1947 is the starting point for modern trademarking, points out Lucien Salvant, spokesperson for the NAR.

"Nobody raised an objection then that the term was generic and 50 years later, it's kind of late," he says.

"We pointed out that NAR's policing program to prevent unauthorized use of the trademarked term has been an effective one," says Salvant. "Membership knows it is a proprietary use."

The NAR disputed a survey presented by Mr. Barry as not being large enough to be statistically significant that some people found the terms generic. The NAR also did not press the point that Mr. Barry had tried before with a previous client to get the NAR's trademark canceled.

"That trial's record was part of this case's court records," says Salvant.

Both sides agree that the judges didn't ask a lot of questions, and neither would venture a guess as to what lack of questions may signify.

The judges will hand down their decision approximately two to three months after reviewing the arguments and stipulated admissions.

Published: November 19, 2003

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Blanche Evans is the award-winning senior editor of Realty Times, the Internet's leading independent real estate news service. She is featured daily on the Realty Times Video Network in the "Realty Viewpoint" segment. Blanche has been named one of the "25 Most Influential People In Real Estate" by REALTOR Magazine, and has been twice recognized as a "notable." In 2005, she was named "Top Reporter Covering the NAR" by Delahaye-Bacon's. 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. To contact Blanche, email her at . For more articles by Blanche, click here.