The Lone Zebra, an Educational Opportunity

Competition is not only the basis of protection to the consumer, but is the incentive to progress. – Herbert Hoover

Climbing Silhouette
(Used under creative commons, thanks Matteo De Felice!)

First, I should apologize to you, my reader, as this could be a long post. Second, I am not an expert on anything I’m about to talk about, I’m approaching this as an outsider, from an educational perspective for a couple of reasons. I fully expect my opinions to be unpopular, but the subject is, I feel, well worth discussion. Please understand, I don’t have a dog in this hunt, I do not have a personal connection to any person involved in this complaint, but I do have an interest in the laws around this, and since I know many of my friends/readers come from industries which are constantly affected about the use of Intellectual Property I thought it would be prudent to contribute to the discussion.

Many of you, who know me through my use of social media,(Twitter, Facebook, Here on my blog) have heard me lament about my business law class. I’ve truly been having a rough time with it, mostly because the teacher is generally unreachable, so I’m having a go at it, alone. Now I don’t claim to be an expert but in my business law class, we had a lengthy discussion about the use of Intellectual Property (copyrights, patients, trademarks, trade dress, and service marks) by companies and individuals, which makes the following an interesting real life case study.

Supreme Court IMG_2952
(Used under creative commons license, Thanks OZinOH)

Recently a controversy has erupted over digital media. Since I work with real estate people and I happen to watch what goes on and what agents might have to deal with on a regular basis, so when I speak to agents, I’m coming from a place where I try to understand their business. I came across a news article by Real Estate Reporting company Inman News where a company from Washington State (The Lones Group) has filed a lawsuit against an individual (Daniel Rothamel, The Real Estate Zebra) and his company (Strong Team Realtors, inc) alleging  infringement over the use of the use of the imagery and word “Zebra.”

Now the complaint was filed in Federal Court as The Lones Group is a Washington State company and Rothamel/Strong Team are residents of Virginia. The court, will have to establish jurisdiction, this is significant, since it will be litigated, if it comes to that, in Seattle, Washington.

Now that we know the complaint and established jurisdiction, let’s define the case.  These are the items of redress the Plaintiff seeks to remedy.

  • Trademark Infringement: Infringement may occur when one party, the “infringer”, uses a trademark which is identical or confusingly similar to a trademark owned by another party,
  • Trade Dress: Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.

Also, you have to indicate the general public could be confused by the infringement. As best I can tell from reading the information is the following items make the two companies competitors. First: They both work in Real Estate (Location is regardless here, thanks to the wonderful world of the internet, anyone searching for Real Estate and in this case the term Zebra, could potentially bring the two of these results up at the same time. (Note: I attempted to qualify this, but the ensuing blog war has muddied the waters. When I searched “Real Estate” and “Zebra” the two of them come up within 10 results of each other.) Second: Each purports to be a Real Estate Speaker/Trainer on the subject of marketing; The Lones Group for profit (that’s the core of their business,) Daniel, I imagine, not for profit, speaks to real estate agents through his Blog (www.RealEstateZebra.com) and through the Inman News circuit events (www.agentreboot.com,) including Seattle March 11th. Daniel’s own website also claims to be “An Inspirational, Insightful and Motivational Source for REALTORS® and Real Estate Agents.”

Now, Since neither company has filed for copyright/trademark with the Federal Government (I searched for copyright here and for Trademark here) the court will look at the complaint from the perspective of “Doctrine of first use” which describes as plainly as it sounds, if you’re the first to use it in the arena, you get to claim it. Now this only lends to enforceability, had either one actually ran to the government and paid the fee, copyright trumps first use, every time. (I note, however, The Lones Group publishes with the following at the bottom of their webpage: “© 2007 The Lones Group Inc. ·-· 2200 Cornwall Avenue, Bellingham, WA 98225 ·-· (360) 527-8904” and Daniel publishes his blog with the following statement at the bottom: “Copyright © 2009 The Real Estate Zebra. All rights reserved.”) It’s great to say that, but if you don’t have it, the courts aren’t going to take any of that into account. So now we have to establish first use! It’s a race to the internet!Well, the history of the internet: The Wayback Archive

I searched the following:

Web archive: www.thelonesgroup.com (And for the first use of Zebra reference) November 2002

Web Archive: www.realestatezebra.com (And for his first use of zebra-when he first published) November 2007

Now that we’ve established first use, we would have to argue the merits of the case and try to determine who has more  documentation, if the judge believes they are in fact competitors and if the Plaintiff has been Injured by the defendant’s actions. That I find interesting here is that the Plaintiff has registered a demand for jury trial, the more expensive of the two types of trials. This is surely calculated. I am not going to argue the merits of the case here, I’m just analyzing the standing to sue. Want to follow the case?

Magnified (8/365)
(Used under creative commons, thanks Jakebouma)

I’ll let you draw your own conclusion, or if you’re inclined, you can read the following blog posts which show the outrage of the Internet Real Estate folk and certain social media people from around the nation who have a personal connection to Daniel and have launched a MASSIVE internet assault on The Lones Group and launched an effort to help Daniel pay for his legal fees.

Some selected posts:

Now that you have all the facts and some of the opinions, feel free to weigh your own decision. Here are some of my major take-a-ways from this who episode: First, You are you, and YOU ARE YOUR BRAND, you MUST protect it, file for the copyright or trademark, it’s a small, but necessary step, easy and it’s the only protection you have. Second, stand in the face of adversity, read any marketing tips out there: All press is good, even the bad stuff. Until now, ‘Nobody had heard of The Lones Group” now, everyone NATIONWIDE and beyond has heard of them, the people listed above has ensured they have a much larger footprint now. BP hasn’t gone out of business has it?

Atlantic, Gulf of Mexico and Caribbean Sea (NASA, International Space Station, 11/09/10)
(Used under creative commons, Thanks NASA!!)

Finally, This, for me, has been a wonderful chance to exercise what I have learned in my business law class, that coupled with discussions with actual Intellectual Property attorneys has added to my understanding of the material. Who knows, I might actually pass this class yet.

The Bottom Line: You work hard to build your brand, business, image. You should endeavor to protect it. Trademark and Copyright registration is a small step to take to stay out of court, unless you’re on the good side.

EDIT: If you want an actual attorney’s take on this whole thing check this out: http://3cpatents.com/_blog/Create,_Consult,_Control/post/Zebra_trademark_backlash/

UPDATED: Two Inman News Stories…

What happens when an online mob/flame storm happens when you’re bound by professional ethics?
http://www.inman.com/news/2011/03/3/zebra-lawsuit-ignites-chain-reaction-in-online-real-estate-community

The Real Estate Zebra Offers Settlement:
http://www.inman.com/news/2011/03/8/real-estate-zebra-settlement-in-works

The Settlement in Daniel’s Own Words:
http://www.realestatezebra.com/in-which-i-explain-my-decision-to-retire-the-stripes

Thanks for reading!

A word carries far, very far, deals destruction through time as the bullets go flying through space. – Joseph Conrad

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13 responses to “The Lone Zebra, an Educational Opportunity

  1. Not sure why you think this would be an unpopular opinion. While some of the posts are over the top disrespectful to Ms. Lones, most try and look at the presentation of the facts.

    Really it comes down to is this…is a man who offers free advice to real estate agents on his blog a competitor to someone that charges for that service (if so all the trainers who speak at REBarCamps, etc are in trouble) and would a reasonable person look at their logos, branding, etc and think they were the same company. Remember the law works from a reasonable person standpoint, not the most idiotic person…thankfully.

    I, too, am interested to see how this plays out because it impacts the world of real estate greatly. Many agents conduct training for free and if that puts us in the cross hairs for a trademark issue with a trainer, then that is worth talking about.

  2. Denise Lones is old school. She may be out of touch, and out of date. She does have a business that, from what I can tell, tries to elevate Real Estate as a profession.
    The social media crowd chides the traditional full commission Real Estate professional in favor of online lead generation. The claim that the internet format is in any way a better tool for selling Real Estate is just an opinion, of a very few.
    As you look through the websites in support of Daniel you can see every one scrambling for business. The internet was supposed to make everything so much easier. A lot of people have millions of dollars invested in internet Real Estate sales, and internet lead generation for Real Estate.
    The way I look at it, this is the social media crowd in another attack against the more traditional belly to belly, printed material in the consumers hand, kind of marketing.
    The Lones Group gave Daniel a cease, and desist order back in July. He ignored that. He is set to come to Seattle in March with an Inman News REBoot. My question has been what qualifications Daniel has as a Real Estate trainer. Other than having an internet presence what is Daniel bringing to the table?
    I don’t know Denise, obviously I’m a little more to the internet camp, but she has her rights. She is exercising her rights. The fire storm only proved, to me, once again, the desperation of social media as a Real Estate tool.

  3. Nick –

    I think this is a fantastic article (and as you know, I’m a supporter of Daniel and Strong Team Realtors — I was the one who set up the site for Daniel’s legal defense fund).

    I think there are two issues at play here: 1) Daniel’s wide-spread support and almost universal respect many people have for him; and 2) the fact that trademark law is extremely complicated and none of those truly interested in this case are attorneys.

    Where I struggle the most with this, in my completely non-legal experience (other then 3 hours of Business Law — incidentally also with a generally unreachable professor) is whether or not The Lones Group and the defendants — Daniel and Strong Team Realtors — are competitors.

    *Maybe* you don’t even have to be competitors to prevail in a lawsuit. I don’t know. But is confusing the businesses matters (and it seems to based on my limited research and the complaint) then it seems they would need to be competitors for it to matter.

    But saying “They are both in real estate”, which is the most common argument I am hearing that they are competitors doesn’t work (for me. In my opinion).

    That’s like saying that a car wash and an Chevy dealer are competitors because “they are both in cars”. Or a book publishing house and a book store are competitors because “they are both in books”.

    Let’s take the defendants separately. The easiest one to me is Strong Team Realtors. They are a real estate brokerage. How they can be considered competitors of The Lones Group is beyond me. They are in fact, the target client base of the Lones Group.

    People can confuse a real estate brokerage with a company that supplies marketing material to real estate agents just because they both use images of zebras? Really?

    Whether Daniel is a competitor of the Lones Group is trickier. Daniel does speak and teach real estate agents. I assume he is compensated by Inman News for his work with Agent Reboot. I doubt it constitutes a living as Inman isn’t know as paying their speakers much (if anything. The VAST majority of speakers at their Connect conferences are “paid” only a conference pass). And I know for a fact when Daniel speaks at NAR conferences he isn’t paid. And I seriously doubt Association appearances pay much. Daniel isn’t living off emceeing 12 Reboot Conferences a year.

    And as far as I know, The Lones Group doesn’t speak at conferences. At least I’ve never seen them speak or seen them on any agenda at a real estate conference.

    Most striking to me is the claim in the complaint that Daniel (and Strong Team) that, “Defendants offer competing blog services in the field of real estate, to the same types of consumers as does Plaintiff.”

    I’m not entirely sure what they are calling “blog services”. But neither Daniel nor Strong Team offers anything even remotely close to what anyone I know would consider “blog services”.

    Whew. That was a long rambling comment. I DO appreciate your opinions here (and the exchange we had on Twitter). So thank you.

    As for Mr. Losh’s comment…
    I am not “scrambling for business” and if you think I’ve put “millions of dollars” into my internet presence you are completely clueless.

    And, “The Lones Group gave Daniel a cease, and desist order back in July. He ignored that.” I would love it if you could please share a copy of the C&D since apparently you have it. Please also share the defendant’s attorneys response.

    PS: I am a “full commission real estate professional” and would appreciate it if you would back off the stereotypical comments you tend to place on “online real estate” agents/brokers. You have *clearly* completely missed the point in my business model and I am quite certain you are not privy to my financial records.

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  5. Thank you for sharing your knowledge on trademark law. Daniel made the mistake of not doing a trademark search and then filing for a trademark. Denise Lones made the same mistake, but used the trademark earlier in time. There are several criteria by which the courts determine whether trademark infringement has occurred. The fact that Denise Lones wants a trial by jury, the more expensive route, could mean that she has deeper pockets than Daniel and is trying to intimidate him into capitulating. Will the damage that Daniel’s social media friends do to Denise’s business be equally intimidating to her? This seems to be a game of “chicken” to see who gives up the stripes first.

    • Your right. It’s been a fascinating real live case study and examination of what I’ve been learning in class. There might be something to this learning thing…

  6. Nick-

    I thought you would find this attorney’s take englightning.

    http://3cpatents.com/_blog/Create,_Consult,_Control/post/Zebra_trademark_backlash/

    (Unlike my own take, which is biased against Lones since I have taken “classes” from her and had some other “interesting” interactions with her in the past.)

  7. Thanks for a good article … and thanks to David Losh for commenting here and elsewhere. He finds himself alone frequently in a crowd of real estate cyber bullies. His points are well taken.

    I had a chuckle recently. I was speaking recently with a very prominent Phoenix Realtor who has SEVERAL HUNDRED listings. He has a terrible website, by any standards, and he did not recognize the names of prominent Phoenix Bloggerazzi.

    I chuckled because I don’t know any Phoenix Bloggerazzi who have a clue about what it must be like to have hundreds of listings.

  8. Not every “Phoenix Bloggerazzi” wants to have hundreds of listings Frances. There are many ways to measure success and satisfaction in career and life other than by the shear number of listings one carries.

    I’m glad you enjoyed your chuckle. Life’s to short to not have a good chuckle every now and then.

  9. I read your post with great interest because I worked for patent & trademark attorneys for a few years, so I know a little bit about the issues, and found that your posting made the issues clear & understandable. Great job because these issues are not all that easy to make clear & understandable.

  10. Nick this was a great post. You really presented the issue in a clear and understandable way just like Kerri said. My personal take on all this is that it makes me furious. I can not stand that in a “free” country we place trademarks on WORDS. I can understand PRODUCT trademarks but words and phrases make me crazy. For instance that a radio or tv show can not use “Super Bowl” unless in certain context because it is licensed by the NFL.

    Personally I will not knowingly do business with an organization that chooses to use or enforce such trademarks. If I ever get off my butt and start being active in the outdoors I will not purchase North Face apparel for this very reason. They tried to shut down a young entrepreneur’s business called South Butt, a parody of North Face. Come on people, I think I am capable of not getting the two confused!

    http://redmountainlaw.wordpress.com/2010/05/05/update-the-north-face-vs-the-south-butt/
    Whew! Sorry Nick but I don’t have a blog to rant on and this just set me off! LOL

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