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Realtor gets cease & desist for another agent’s listing in IDX

We have obtained a copy of a cease and desist letter sent to a single Realtor for alleged trademark violations committed by his featuring another agent’s listing through his IDX. This is not the first issue of its kind in recent months.

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Trademark violations are serious business

Imagine you wake up tomorrow and a sign pops up on offices down the street from your house, and the sign reads your company’s name, only it isn’t your company, it is your competitor who has started to use your name and logo. That sure can confuse the marketplace.

But imagine that you’re a real estate professional and you feature all local MLS listings on your website through IDX, even if they’re not yours, and you get a letter from a lawyer claiming that an agent’s listing that appears on your site is your using someone else’s trademark to promote your company, and there are now allegations of confusion in the marketplace. Which is confusing in itself. Then imagine that you do a quick search for the listing and find that there are over 3,000 results online for the exact same listing, but there have not been over 3,000 cease and desist letters.

This is exactly what happened to Frank Llosa, Esq., Broker of Frankly Real Estate. Llosa recently received a cease and desist letter threatening action if he did not remove the listing of another broker, incorrectly advertising the trademarked term “Leisure World,” a listing that mentions the term in the property description of a building of condos in Maryland.

Llosa tells AGBeat that he was “flattered” that his “search engine optimization must be working well” that his website topped the search engine results, but noted that in his own search online for the specific listing, over 3,000 websites resulted.

Confusion in how real estate data is displayed

Over email to the lawyer that sent him the cease and desist letter, Llosa said, “Your issue may be with Weichert Realtors. They are the listing brokerage firm selling Leisure World units in MD. They posted the home on the MLS with the MLS #MC7774082. MLS stands for Multiple Listing Service. This data is then sent out to over 3,000 websites who are cooperating brokers. You just happened to contact me, as one of htose [sic] 3,000. I have nothing to do with Weichert, and I have nothing to do with Leisure World. If you feel that all 3,000 are in violation, you can FEDEX them a cease and desist letter as well. Here is a link.”

Llosa continued with suggestions of other entities the lawyer could contact, “Including Zillow, a public company [link to listing here] Trulia [link to listing here] and 3048 others. You could also contact MRIS, which is the local MLS data aggregator and distributor. Or you can contact the National Association of Realtors that overseas [sic] many of the 3,050 possible violators. They will also tell you that the websites displaying this information are not at fault. You need to go to the source. See the result of this lawsuit to better understand how it all works.”

Not the first lawsuit of its kind

As Llosa referenced, this is not the first lawsuit of its kind, as a fair housing lawsuit was recently dismissed against an agent whose website featured another agent’s listing through an IDX system which featured a fair housing violation.

UPDATE: According to Metropolitan Regional Information Systems, Inc. (MRIS) rules, under these circumstances, agents may not modify listings. “Article XXII- INTERNET POLICY Sec. 3 Principal Broker Subscribers and their affiliated licensees and Appraisers may not modify listing information (such as list price, lot size, postal city, etc.) from another Principal Broker Subscriber’s listings. MLS data may be augmented with additional data not otherwise prohibited from display so long as the source of the other data is clearly identified.”

We have reached out to Leisure World’s counsel for comment and requested more information pertaining to their investigation, who else has received cease and desist letters, what they believe damages are, and what course of action they believe any of the 3,000+ individual website owners and agents have in a scenario when they cannot edit an IDX feed, and have not received a response as of publication. Their response will be published here upon reception.

Click to enlarge cease and desist letter; full text is typed out below the image:
cease and desist

“Dear Mr. Llosa:

We represent RRLH, Inc. (“RRLH”), the owner of the famous and incontestable LEISURE WORLD (U.S. Reg. No. 809,677), Globe with Leisure World design (U.S. Reg. No. 809,679), and Globe with birds design (U.S. Reg. No. 1,657,718) trademarks (herein, “Leisure World marks”).

It has come to our attention that, among other things, you are using the Leisure World marks to advertise your real estate business on your website “franklymls.com” in connection with efforts to market Villa Cortese V. Please see the attached printouts of the website with the uses highlighted. You have no rights to the “Leisure World” name. Your use of the Leisure World marks violates trademark laws, and is immediately actionable.

There is an overwhelming danger that your use of the Leisure World marks in your advertisements will cause consumers to be deceived into believing that you are affiliated with our client and/or that our client and its authorized licensees are affiliated with your site and/or endorse the products, services, organizations, or viewpoints featured or advertised on your site. Creating this kind of consumer confusion in the marketplace is prohibited by federal law, inter alia, 15 U.S.C. 1114(1); 15 U.S.C. 1125(a); and 15 U.S.C. 1125(c).

We hereby demand that you immediately cease and desist from all use of the highly recognized and valuable Leisure World marks, including ceasing use of the Leisure World marks in your advertisements. We expect a written confirmation from you regarding these matters no later than May 28, 2013 at 5:00 p.m. In the meantime, if you have any questions, you or your attorney should contact me at (949) 723-4844.

Nothing in this letter shall be deemed a waiver of any rights, remedies or defenses of RRLH, all of which are expressly reserved, including the right to seek monetary damages for trademark infringement.

Very truly yours,
Richard M. Sherman”

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12 Comments

12 Comments

  1. Ed Neuhaus

    May 9, 2013 at 1:13 pm

    not good. I hope this does not get out of hand.

  2. Gary Little

    May 9, 2013 at 1:37 pm

    Good on Frank for responding to this nonsense lawsuit with just the right degree of sarcasm. Nice boilerplate letter from Sherman, though. Wonder how much he charged his client for sending it. I also wonder if they realize Frank is also a lawyer and can see through these intimidating tactics with ease.

  3. Vicki Moore

    May 9, 2013 at 1:38 pm

    famous and incontestable?

  4. Michael Erdman

    May 9, 2013 at 2:16 pm

    Thank you for bringing this to our attention Tara.

    Frank should be commended for maintaining his wit and sense of humor after receiving this seemingly misguided cease and desist letter.

    A word of caution though. Unlike the case with Jeff Launiere in Florida, the allegedly actionable content here relates to a purported trademark. The protection offered by the federal Communications Decency Act, 47 USC 230, generally excludes intellectual property claims. So while to those in the know, Frank’s “conduct” here seems (and truly is) just as innocuous as Jeff’s, Frank should proceed cautiously.

    That said, while it’s understandable Mr. Sherman’s client is acting to police its trademark, it probably could not have picked a worse (or more inappropriate) target here in Mr. Llosa and his website. If it should be targeting anyone, it should be the listing broker and/or its client.

    Michael Erdman
    Teeple Leonard & Erdman Attorneys at Law

  5. Chuck Rifae

    May 10, 2013 at 11:01 am

    Its all about educating the public( and real estate professionals). The general public has no idea what happens behind the curtain well call syndication. The more folks that write about being “Zillowed” the more the public will learn.

  6. Maureen McCabe

    May 10, 2013 at 11:13 am

    What is Leisure World? Is the property in the MLS related to that famous and incontestable business? Or are those two words strung together in a description? If the listing agent is using the words to indicate a famous and incontestable ??? it would be easy enough to get the source to make a correction and cease and desist.

  7. Saul Klein

    May 10, 2013 at 11:28 am

    Hi Tara – You mention syndication, but this appears to be an IDX issue. We don’t usually use the term syndication to describe IDX. They have come to represent dramatically different license arrangements in the industry. It is my experience that the major portals are approached when copyright owners believe they have a cause of action. At Point2, for about 6 months, we were receiving a number of requests for payment from Getty Images.

  8. franklyrealty

    May 10, 2013 at 12:18 pm

    Thanks for the support. The interesting thing is that the MRIS (the local MLS) rules and regulations specifically forbid me from editing the content of another broker’s listings. So what is one to do?

    Michael, they sent a letter to three total places. I was one. One was the listing agent, and my guess is the 3rd was the listing broker, but I am not sure. It should have gone also to MRIS.

    I did put them on notice that according to his definition of a violation of the trademark, there were 3,000 violators (actually maybe more like 2,000). So if he would in theory now have to write to all 3,000 to protect his TM.

    Gary, yes he knew I was a lawyer.

    Frank
    @FranklyRealty

    • Michael Erdman

      May 10, 2013 at 1:28 pm

      Thanks for the extra info, Frank. Because you received a letter and not a summons, I’m somewhat optimistic this will get cleared up once counsel and his client get up to speed.

      If you are comfortable saying so, does your MLS (or perhaps, indirectly, its participants) contractually indemnify you for claims pertaining to the contents of other participants’ listings?

      Michael Erdman
      Teeple Leonard & Erdman Attorneys at Law

  9. Wayne Fenstermacher

    May 12, 2013 at 2:15 pm

    Where do you see the “Leisure World marks”? I don’t see a globe and birds – even in the photos – unless I just didn’t notice, but I did look carefully just in case there was a sign (other than the one with the “Villa Cortese” on it.

  10. tobyboyce

    May 15, 2013 at 4:29 pm

    This is different than the typical Zillow discussion in many ways, it was just exasperated and made clearer due to the zillow factor. How many times have you taken a picture of the sign on a condo unit as a way to market the property and a point of reference?

    I’ve done it. The condo association owns the trademarks associated with its condo names and if it chooses it can enforce it to defend itself. Now, most of them are pro-home owner enough that they understand the process of getting a home sold and what the goal is from taking the photograph.

    However, in this case the big company that owns the association is policing its trademark and logos and doesn’t want it used in that manner. Due to the process and how the real estate IDX works, it would be surprising if Frank has any further issues.

    However, I wouldn’t be surprised if the listing broker and listing agent are not required to make adjustments and then to verify that these adjustments have been made.

    And I don’t think that’s a bad thing. Do you?

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Hands of all different skin colors on green background representing Starbucks' D&I.

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