(Note: Shelley Specchio is CEO of the Northern Nevada Regional MLS, Inc., a host of the CMLS Conference in Lake Tahoe, September 30 – October 2. She and I have been discussing topics for the legal panel there. Shelley wants input and feedback from those likely to attend: Which legal topics are of greatest interest and what aspects of them are most important for MLSs? I agreed to do a series of blog posts on some of the candidate topics, cross-posting links to them in other forums and asking folks for their input. This is the second. If you have other topics to suggest, email me or comment on any of these posts.)

A common problem in the industry is that large brokerage firms are great targets for cybersquatters. According to the Anticyersquatting Consumer Protection Act (15 U.S.C. 1125(d)) or ACPA, cybersquatting or cyberpiracy is registering, trafficking in, or using a domain name identical to or confusingly similar to someone else’s trade- or service mark in bad faith. The most common form in our industry results in folks registering a domain name that is a slight variation of a broker’s firm name (also called “typosquatting”), putting up a page on the resulting domain, and selling real-estate-related links on the page. In most cases, this violates the trade- or service marks of the broker and may violate the ACPA.

What cybersquatting looks like

I’ve picked a victim at random. I opened the RealTrends 500 report and randomly picked a broker that our firm does not serve as a client. I selected Latter & Blum, Inc., a REALTOR® firm that serves New Orleans and the Gulf South. Latter & Blum’s firm web site is at www.latter-blum.com. Check it out; I’ll wait…

It turns out Latter & Blum affiliates have more than one site. If you type www.latterblum.com (one hyphen away from the first site) you end up at the site for NAI/Latter & Blum, a commercial real estate firm.

But try www.latterblumrealtors.com. The resulting homepage does not belong to the real estate firm. It shows links: “Home For Sale,” “Real Estate Agent,” “Foreclosed Home,” “Real Estate,” “Home Buying,” and “Real Estate Commercial” – the links lead in turn to pages at the ‘searchportal.information.com’ domain, with links to other real estate brokers, home builders, foreclosure web sites, but not to Latter & Blum. If we look at Information.com and check the About page (http://information.com/help/about.html), we learn that it “is a privately-held, growing, profitable online advertising company that provides advertisers with results-driven access to online inventory and publishers with a way to monetize web, search and e-mail traffic.”

Now try http://www.latterblumrealestate.com/. The homepage there shows links: “Real Estate,” “First Time Home Buyer,” “Home Value,” in addition to links for local real estate markets, including Costa Rica, San Antonio, North Carolina, etc. It shows a copyright notice “© 2009 latterblumrealestate.com”. Click on “Real Estate” and you get page with links to real estate broker web sites (not including Latter & Blum). This time, the pages appear on the www.latterblumrealestate.com domain. There is a link to “Inquire about this domain.” (I interpret that as “inquire about purchasing this domain.”)

You’ll find similar results at http://www.latterblumrealty.com/, www.later-blum.com, and www.latter-blume.com, each a slight variation of the firm’s name. Interestingly there is nothing at www.latter-blumrealty.com or www.latter-blumrealestate.com (and I hope my pointing that out does not result in a change). This can happen with smaller brokerage firms, too, if they have a well-known brand.

Trademark law is usually firmly on the side of the brokers here. Using a domain name that is confusingly similar to a broker’s mark to market real-estate-related services infringes the broker’s mark. The broker does not necessarily need to have the mark registered at the Patent & Trademark Office to claim its rights, though that certainly does not hurt. In the case of domains including “REALTOR” – NAR might have a thing or two to say about it, too, as that is NAR’s registered mark, and it is subject to restrictions regarding its use.

Solving the problem

We’ve helped several brokers remedy these problems. The process usually starts with a cease and desist letter from our office. Sometimes the squatter will transfer the domain immediately as a result of our nasty-gram. More often, we get no response from the registrant (which is often hidden behind a registration privacy service or is located in Hong Kong or Panama). After waiting a bit for a response, we file a UDRP complaint against the registrant. UDRP stands for the “Uniform Domain-Name Dispute-Resolution Policy” adopted by ICANN (the international regulator of Internet domain names) and made a part of the registration agreement of every domain name registrar for names ending in .com, .net, .org, and some other (but not all) top-level domains. (For the sake of clarity, “registrant” is the person who registers, uses, and owns a domain name; “registrar” is the company, like Network Solutions or GoDaddy, that provides the registration services.)

The UDRP provides for an arbitration process. We file the arbitration complaint on behalf of the broker with one of the approved arbitration services. Usually, the registrant does not even respond to the complaint; in that case the arbitrator is most likely to rule in favor of our client. Unless the original registrant appeals by filing suit in court, the arbitration results in the registrar (not the registrant – this is important because the registrars are comparatively much easier to locate than the registrants) being ordered to turn the domain name over to our client.

We could go to court, of course, but that would be more expensive and the results might not be any more satisfactory. Under certain circumstances, though, it might make sense, especially if the defendant is an American company out of which we could extract money damages or attorney fees.

So, how can MLSs help brokers in these situations?

  1. Educate them about the risks. (You can just forward a link to this post, if you like 😉 Encourage them to check likely typo-squats for their firm names.
  2. If your MLS is owned by REALTOR® associations, they have an interest in protecting the “REALTOR” mark. So perhaps you can refer typo-squatted domains that include “REALTOR” to the local REALTOR® association or to NAR.
  3. If you stumble on an example of a typo-squatter for a particular broker, give the broker a heads up.

So, I’m curious whether MLSs themselves are struggling with any domain name issues? If so, what kind? Would this be a good topic for CMLS? Post your comments.

(BTW, it’s possible if you are viewing this post long after its original date that the examples will no longer illustrate the problem if Latter & Blum takes action to correct the cybersquatters identified here. You can illustrate it yourself using another well-known firm name, maybe even your own.)

-Brian

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