REALTOR not generic, rules TTAB

In Zimmerman v National Association of Realtors, the Trademark Trial and Appeal Board (TTAB) has ruled that REALTOR and REALTORS functioned as valid collective membership service marks belonging to the National Association of Realtors (NAR) and were not generic terms. The TTAB held that the terms did not refer to all real estate agents but only to those who are members of the NAR.

The NAR is the United States' largest trade association, representing one million members involved in all aspects of the residential and commercial real estate industries. The NAR has more than 1,500 local and state associations, and more than 760,000 individual real estate professionals use the NAR marks to identify their membership. The NAR owns federal collective membership service mark registrations for REALTORS and REALTOR dating back to 1949 and 1950 respectively. These two registrations are among the first collective membership marks to have been registered in the United States.

Jacob Zimmerman registered 1,900 domain names, all of which contained the term 'realtor', with the intention of marketing them to real estate agents. He sought cancellation of the NAR's trademark registrations on the grounds that they were generic.

The TTAB first recognized that the NAR has long considered the REALTOR and REALTORS marks as collective membership marks. The purpose of collective marks is to indicate that users of such marks are members of the NAR and have met the NAR's standards for admission.

In denying Zimmerman's claim that the terms were generic for real estate agents, the TTAB emphasized that there was little evidence that any of the NAR's competitors use the REALTOR and REALTORS marks generically. In contrast, there was evidence that the NAR had preserved the proprietary nature of the marks because, among other things, the NAR had engaged in aggressive promotion of the marks and was vigilant in policing their use in the media.

The TTAB stated that Zimmerman's survey evidence carried little weight because it focused on "individuals who had consulted a real estate agent in the past year or were planning to buy, sell or rent real in the next year" and not the correct target group - real estate agents. The NAR's survey, on the other hand, was directed towards real estate brokers and agents, and strongly supported the NAR's position that real estate agents view the REALTOR and REALTORS marks as proprietary terms indicating association with the NAR.

Accordingly, the TTAB dismissed Zimmerman's claim.

Howard Michael, Brinks Hofer Gilson & Lione, Chicago

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