The following is a guest blog by my law partner, Greg Popowitz, Registered Patent Attorney. Greg is our first guest blogger.

Opening a brokerage?   Pass the real estate exam?  What exactly is a realtor?

REALTOR is a federally protected trademark.  A trademark is a word, phrase, or design that identifies and distinguishes the source of goods/services from one party from others.  The mark REALTOR identifies real estate professionals who are members of the National Association of Realtors (NAR).  Contrary to popular belief, it is not a substitute for a real estate agent.

The brand REALTOR was federally trademarked by NAR in 1950 under Trademark Registration No. 0519789, with dates of first use in commerce dating back to 1916!  This is a longstanding trademark considering current trademark registrations are in the 5 million number range.

You might wonder how REALTOR can be protected when it is used commonly throughout the real estate industry.  In some cases, famous brands do become generic and lose trademark protection.  This is termed genericide (yes that is a word).  Some of the many examples include THERMOS, LINOLEUM, ZIPPER, and YOYO.  Presently, XEROX is fighting genericide by asking consumers to refer to the brand in the context of “making a Xerox copy” instead of “going to Xerox the page”.

In 2004, Jacob Joseph Zimmerman filed a petition with the Trademark Trial and Appeal Board (TTAB) claiming the term REALTOR was generic and synonymous with real estate agent.  The main question was whether the term was used in a generic fashion to refer to services.  After reviewing the evidence, the board ultimately held that Zimmerman did not meet his burden and rejected his petition.   REALTOR is still a federally protected trademark.

If you are in the real estate industry, you must be diligent and careful not to use someone else’s protected brands in your business/marketing.  Otherwise, expect a nasty cease and desist letter in your mailbox.  Creating and building your own brand is best way to distinguish yourself from the crowd.  Brands can be protected federally, to maximize protection nationwide, or through common law by simply using the brand in commerce.  However, common law rights are limited to the geographic area in which the brand is used.

So I ask you, the next time you look to buy/sell property, will you type real estate agent or REALTOR into Google?  I mean search engine…

For more information about trademarks, contact Registered Patent Attorney Greg Popowitz at 954.929.1899 or GMP@assoulineberlowe.com.

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