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.
“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”