Many of you may recall that two years ago Re/Max legal department sent me a cease and desist letter demanding that I redesign our company’s yard signs. It was their contention that they own a trademark on all uses of red over white over blue on yard signs. Seriously — I’m not kidding — they honestly do!
Okay, you can stop laughing. There’s more. You may recall that I then asked you, my readers, if I was missing something. Was I being unreasonable in defending our company’s own yard sign design? I wrote an article and another followup asking for your feedback. And did you ever give it. Never, in the history of my blog, had I received as many comments — 146 in all!
SEE BOTH SIGNS AT EITHER LINK ABOVE!
Unlike many stories, however, your opinions were very one-sided. Nearly all of you agreed that Re/Max was overreaching. Of course, I basically told them to get lost, that I wasn’t violating their trademark and that there was no evidence of confusion in the marketplace (a key element in any trademark action).
They wrote back and effectively said, “No, we’re really, really serious. You must cease and desist all uses of your yard signs immediately.” to which I responded, “I’m really, really serious — I am not violating your trademark, but I am reasonable. If you feel that strongly about my signs, I will be happy to redesign them as long as you pay for the replacements.” That was it. Not another word for two years.
Then a few days ago, I received another FedEx package from Re/Max. This one included yet a third cease and desist letter that said, “No, we’re really, really, really serious.” I responded and said that my position hadn’t changed but reiterated that if they felt strongly about our sign, we were still willing to change it, but at their expense.
But, an interesting thing happened, during that interim: We started hearing from other companies who had also received nearly identical threatening letters from Re/Max and had found our story on the internet. Many of them had signs that were not remotely similar to Re/Max’s and one was from an entirely different industry. All ranged from very concerned to terrified by the prospect of being involved in federal trademark litigation and were seriously considering abandoning what appeared to be perfectly legitimate marks.
After hearing so many nearly identical stories from so many unrelated sources, it is hard not to get the impression that the Re/Max legal department has an actual business practice that seeks to leverage its rather vague trademark into something greater than it is by this tactic of bullying smaller companies into acquiescing to their overreaching demands, whether or not there is any legal basis for it, out of fear of litigation expense, negative publicity, and/or other negative consequences.
Obviously, Re/Max International has substantial market power and financial resources with which to bring frivolous complaints against much smaller companies that are financially unable to defend themselves due to the prohibitively high cost of federal trademark litigation. (The expense of a single trademark lawsuit could easily exceed $100,000 per party, enough to make many smaller companies simply walk away from their hard earned brands.)
It is our opinion that this use of the threat of impending legal action to unlawfully limit competition and financially intimidate much smaller companies, if true, constitutes a textbook coercive monopolistic violation of the Sherman Antitrust Act and thereby an unfair and deceptive trade practice under the Uniform Commercial Code. But maybe it is a coincidence.
Maybe I am too close to this to have an objective point of view. For that reason, I would like to hear from you, my readers. Have you or do you personally know of any other companies that have received similar threats from Re/Max? If so, what was their outcome? Do you think this is fair play? What would you do if you were to receive a similar threat from Re/Max? Thank you for weighing in with your opinion — it means a lot to me.
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Matt Jones is the founder and CEO of FavoriteAgent.com, nationally syndicated columnist, broker, and best selling author of LCM: The Secret to Success in the New Age of Real Estate, The Ultimate Listing Presentation, Traffic: How to Sell Fast and Net More, Becoming a Mega-Producer, The Science of Online Marketing, 10 Steps to Real Estate Success, 20 Questions: Everything You Always Wanted to Know about Real Estate but Were Afraid to Ask, The Virtual Office Model, Max-Bang!, and The NEW Ultimate Listing Presentation. Jones' North Carolina-based company has been profiled by major media outlets as an innovator and a pioneer in the industry, and CNN's Pulse on America claimed FavoriteAgent.com is "changing the way real estate is being done in America." This article is syndicated in the following locations: iTunes, YouTube, Stitcher Radio, BlogMattBlog.com, RealBlogging.com, NewsGeni.us, TheCommissionCheck.com, RevampedAgent.com, and now Amazon Kindle.