Competition is not only the basis of protection to the consumer, but is the incentive to progress. – Herbert Hoover
(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.
(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?
(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?
(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?
The Real Estate Zebra Offers Settlement:
The Settlement in Daniel’s Own Words:
Thanks for reading!
A word carries far, very far, deals destruction through time as the bullets go flying through space. – Joseph Conrad