Shortly after launching our Really Rotten Realty website last month, we were reminded of the difference between Realtors and real estate agents. That reminder came in the form of a friendly request from the National Association of Realtors’ legal department about the correct use of their trademark. Without thinking, we interchanged the word Realtor for real estate agent in a couple of sentences scattered throughout our site that described AgentHarvest’s real estate agent finder services. Even though the term Realtor was used positively to describe quality agents, it’s still a trademark violation nonetheless. It was an oversight on my part that was promptly corrected and I want to thank The National Association of Realtors for bringing that oversight to my attention in the kind manner in which it was relayed. The Trademark Administrator for NAR, Mary Newill also provided me with lots of information regarding the correct usage of the word Realtor. Apparently she said that this misuse is quite common, even for Realtors. Case in point since I misused the term and I’m also a Realtor. Seeing as this is such a common problem, I decided to share the information she relayed to me.
My conversation with Mary Newill of The National Association of Realtors started in May, when we launched the Really Rotten Realty website. The site quickly reached popularity thanks largely to a featured article in The Future of Real Estate Marketing from Katie Lance of Inman News. I would like to personally thank Katie for the great article. If you haven’t seen it yet, I suggest you take a look. Really Rotten Realty is a parody site that takes everything everyone hates about bad real estate agents and groups it into one lousy real estate agency that prides itself on the horrible job it does in fleecing their clients. The site was done to show, through humor, the types of agents AgentHarvest helps you avoid when you use our free real estate agent finder services.
Self-promotion aside (sorry won’t do it again), all the publicity this site received also attracted the attention of The National Association of Realtors, especially their Trademark Administration department. Ouch! Just kidding. They were very helpful and informative. As a matter of fact they were so informative that I decided to create a post from the information I received.
Realtor, Real Estate Agent… What’s the Difference?
Realtor is a trademarked brand name that is short for The National Association of Realtors, like UPS is short for United Parcel Service. While the term real estate agent describes anyone who is licensed by their state to work in the real estate industry, Realtors are members of a national association.
So Why Do They Adamantly Defend it?
There have been cases where trademarks have become more closely associated with the class of product or action instead of the actual product itself. In other words, they’ve become “generic.” This creates a problem when a company holding the trademark has to go to court to defend their rights to govern that trademark’s use. If it becomes generic then it becomes harder to enforce it’s use, especially if the defendant can prove that the company didn’t defend their trademark and allowed it to become generic before the defendant used it. A few examples of lost trademarks are Thermos, Escalator, and Aspirin. Like The National Association of Realtors, other companies that actively protect their trademarks are Xerox, Kleenex and FedEx. More people say Xerox and Kleenex than they say make a copy machine or facial tissue. So many people used the term FedEx to describe sending a document overnight, that Federal Express officially changed their name to FedEx to avoid losing it. The National Association of Realtors must defend its trademark to protect the term Realtor. Imagine how much trouble they’d have distinguishing their brand if they were called “National Association of Real Estate Agents.” Think how many similar sounding company or organization names you could come up with that could closely match that name without breaking the law to make your company sound confusingly close to their association. This would become a big mess. Let’s use AgentHarvest for example. AgentHarvest is a free real estate agent finding service. Finding an agent through AgentHarvest’s services is called “AgentHarvesting.” Sounds catchy. I hope it catches on. But think of the nightmare I’d have if the term AgentHarvesting became the generic term used to describe finding a real estate agent. If thousands of real estate agents started promoting their “AgentHarvesting” abilities think of the damage that could do to my brand. Imagine searching for “AgentHarvest” on the web and getting thousands of hits, none of which have a thing to do with me. But fear not, AgentHarvesting is also a trademarked term, like Realtor and anyone caught using it would be asked to immediately stop. Mary Newill summed it up this way; “We have to consider how the public is going to see the use of the Marks. Is it identifying someone as a Member of the REALTOR organization or will they believe by the way it is being used that it is a generic word for an occupation?”
The National Association of Realtor’s Position on the use of Realtor
According to The Association of Realtors, “the terms REALTOR, REALTORS, REALTOR ASSOCIATE, as well as the REALTOR with Block “R” logo, are all federally registered collective membership marks owned exclusively by the National Association. Collective membership marks are a type of trademark which, rather than indicating the source of a product or service, identify the user of the membership mark as a member of a particular group, in this case the National Association.”
“The National Association has approximately 1,000,000 plus members, each of whom is licensed to use one or more of the membership marks to identify themselves and as Members individually and through their real estate businesses. Each member of the National Association agrees, as a part of their local Association’s Bylaws, to abide by the rules governing the use of the REALTOR marks. These rules were created to help us retain the federal trademark registration of the membership marks.”
Article V, Section 7 of the Bylaws
This provision in the Bylaws expressly prohibits the use of any descriptive words or phrases from being used with the membership marks. This is because when you use descriptive words or phrases with the marks you are inadvertently presenting the membership mark in a generic way as a synonym for a real estate agent/broker/salesperson rather than correctly using this term to identify yourself as a member of the REALTOR organization.”
“There is a test in the Trademark Manual to help members understand correct contextual use of the Marks. They suggest that you substitute the word “member” for the membership mark “Realtor” in the sentence or phrase you are using it in, and it retains your intended meaning, it would most likely be a correct use.” Try that test using your company’s name and you start to get the picture of why they must defend their trademark.
Realtor Trademark Usage in an Ideal World
Mary Newill, Trademark Administrator for NAR explained it this way. “While we hope to one day have everyone understand that when someone is identified as a REALTOR they are a member of the REALTOR Association, a real estate professional who is the most educated, honest and ethical real estate salesperson or broker around. Someone who voluntarily has agreed to abide by a strict code of Ethics that protects the public, REALTORS and other real estate licensees and has agreed to arbitrate any complaints made by any of these groups, but unfortunately, we know that this has not happened yet. If you think about it licensed is actually a descriptive word, I usually tell members there is no such thing as a REALTOR license, you either are a licensed real estate sales person or licensed real estate broker, but you join the Association and agree to abide by the rules and the Code of Ethics to become a REALTOR. Since the term REALTOR is registered as a type of trademark called a membership mark when used correctly it should always be identifying someone as a Member of the Association e.g. Realtor Bill Petrey, Realtor Bill or Bill Petrey, Realtor. If someone uses REALTOR to identify themselves as members this is fine. It can always be used with a firm’s name to indicate that this firm’s members are REALTORS, e.g. ACME Real Estate, REALTORS. Contextual misuse is common even for our Members but as the Trademark Manual indicates we do have to think of how members of the public will view the use of this term if we want to retain the value in this Mark.
I would like to personally thank Mary Newill for her help with this article. Her contribution was immeasurable and greatly appreciated.