Insurance

Loans

Mortgage

Attorney


Insurance

Loans

Mortgage

Attorney

RE/MAX Bullying Small Companies?

Thursday, April 29, 2010

That’s what real estate trainer and our very own syndicated columnist Matt Jones is claiming. RE/MAX generated a firestorm this week by challenging national real estate company FavoriteAgent.com in a trademark dispute over their yard signs.  The dynamics of this case are fascinating, and we plan to continue to bring you new developments as we receive them.

The episode began last month when Matt Jones, President/CEO of FavoriteAgent.com as well as a regular columnist at NewsGeni.us, revealed on his nationally syndicated blog BlogMattBlog.com that he had received a letter from RE/MAX corporate headquarters to cease and desist all use of his company’s yard signs.  Shocked by such an unexpected claim, Jones conducted an informal reader survey to gauge agent opinion on similarities between the two signs. In addition, he posted a scan of RE/MAX’s letter as well as his response.  The documents can be viewed at BlogMattBlog or at the links below.

However, the story didn’t catch fire until earlier this week when Jones posted a follow up to his first blog article.  Apparently RE/MAX escalated the dispute and sent a second and final demand letter to change the signs — or else.  The alleged trademark infringement on the signs occurs in FavoriteAgent.com’s use of red-over-white-over-blue horizontal bars, which is a registered trademark of RE/MAX International Inc.

This may seem odd to those not familiar with US trademark law, but NewsGeni.us did some digging and found that RE/MAX does, in fact, hold a trademark for the use of red, white, and blue in at least one very particular formation.  (Who knew that you could trademark colors? But they’re right — you can.)  It is RE/MAX’s position that the color choices and formation is distinctive element of their brand, and the similarity of FavoriteAgent.com’s design is likely to cause confusion among consumers.  A copy of RE/MAX’s original demand letter can be viewed here.  The “final demand” can be viewed here.

The “offending” use that mobilized RE/MAX’s legal department is a promotional graphic displayed on the FavoriteAgent.com “Find an Agent” page (pictured above).  We noticed right away that the sign displays a fake telephone number, indicating that it may merely be a realistic drawing, not an actual sign.  Naturally, the yard sign designs in use by FavoriteAgent.com agents nationally are extremely varied, although this particular design is available for download to all member agents.  RE/MAX’s letter does not cite any known use of the offending sign.

Matt Jones believes RE/MAX is overreaching their trademark rights and has decided to stand his ground.  Jones fears that by complying with RE/MAX’s request he would only expand RE/MAX’s trademark reach and encourage the intimidation of other small businesses in the future.  “The simple fact is that RE/MAX is trying to use cases like this one to expand their limited trademark into a far-reaching trademark of red, white, and blue,” Jones said. “If companies all run when the bully challenges them, then eventually we will all have orange and green signs. I for one am willing to stand my ground when I know I am in the right.”  He goes on to point out that, “if you read the actual trademark documents…you will see what the USPTMO gave them was far less than what they are asserting.”

Although the signs themselves are easily distinguishable, as evident in the informal survey Matt conducted on his blog, we have to admit that RE/MAX’s claim does seem reasonable at first.  After all, if RE/MAX owns a trademark on red-over-white-over-blue designs, the what can one do, no matter how unreasonable or unfair it it might seem?  However, we see thin evidence behind RE/MAX’s claim that FavoriteAgent.com’s signs create a “likelihood of confusion” in the marketplace.

First, both companies have distinctive logos which draw far more attention on the sign than their choice of background colors.  Second, the color combination itself, red and blue, is not distinctive.  As many readers pointed out in the comments to Matt’s post, these colors belonged to our national flag long before the first house was sold under the famous RE/MAX balloon.  In fact, we count no less than seven major national real estate firms who use the same color combination.  (ERA, Realty Executives, Long & Foster, Assist2Sell, RE/MAX, Fonville Morisey, and of course, FavoriteAgent.com.)  The national real estate landscape is so saturated with red and blue, we would venture to guess consumers have developed a not insignificant degree of blindness to it.  In other words, it’s not like FavoriteAgent.com chose Exit Realty’s distinctive green and maroon color scheme.

Finally, after digging further into the actual terms of RE/MAX’s demands on FavoriteAgent.com, we came away wondering whether they have any desire to reach a resolution at all.  Indeed, their settlement terms specifically state that it would be “unacceptable to take expedient measures such as simply reversing the colors, altering the width of the bars, clipping the corners of the sign, or changing the bars to colors that can easily be confused with blue and red.”

In other words, RE/MAX holds that their “distinctive” red-over-white-over blue trademark also applies to blue-over-white-over-red as well as to colors other than red and blue.   The letter further states that any new design should be submitted to RE/MAX for approval before implementation. Naturally, many readers find these terms to be nonsensical and unfair, and although we’re withholding judgment pending further developments, we might just agree.

Stay tuned for further developments…

To voice your opinion or read more about this story, visit BlogMattBlog.

 

InsuranceLoansMortgageAttorney

Comments (0)

To view or post comments you must connect to Facebook via the "Connect to Facebook" button.
Connect to Facebook