Though your business may be real property, intellectual property issues most likely do or will play a role in your business operations. Intellectual property (IP) includes patents, trademarks, copyrights, and trade secrets. Here we provide you with the top five areas to take advantage of potential IP rights or where IP issues may arise in real estate.
- Trademark Protection is Not Limited to a Business Name: Trademark protection is not limited to just a company's name. For example, the name or nick name of a development or building can be protected by a trademark registration. Trump Tower®, Empire State Building® and Sears Tower® all are or were registered trademarks for services related to management and leasing of real estate. If you are considering trademark protection, selection of a strong mark and clearance to ensure that there are no pre-existing trademark rights are important first steps.
- Copyright in the Building Plans: Copyright in the plans for a building arises automatically and generally last for the life of the architect plus 70 years. Generally, the copyright will be owned by the architect unless the plans are subject to a written assignment or the architect is an employee and the plans were within the scope of his or her employment. Who owns the copyright in the building plans should be a consideration in real estate development transactions.
- Copyright in Real Estate Listings: Information on a multiple listing service is likely to contain some copyrighted material, specifically photographs, virtual tours, artistic renderings, floor plans, list price, architectural drawings, and creative listing descriptions. In the absence of a written agreement to the contrary, copyright protection, for example in the photographs of the building, vests automatically with the creator. It is important to keep in mind who owns the copyrighted material and acquire the appropriate assignments in writing.
- Trade Secret Protection for Commercially Sensitive and Confidential Information: Commercially sensitive information can be inexpensively protected as trade secrets if simple steps are taken to perfect that information as a trade secret. Protectable information includes information relevant to the real estate industry, for example customer and client lists, marketing strategies, pricing strategies and policies, certain contracts, and any other competitively sensitive information. However, trade secrets are valuable only as long as it is kept a secret and reasonable steps are made to keep it a secret.
- Realtor vs. Real Estate Agent: The terms REALTOR, REALTORS, and REALTOR-ASSOCIATE are all federally registered collective membership marks owned by the National Association of Realtors (NAR). Collective membership marks are a type of trademark which, rather than indicating the source of a product or service, identify the user of the membership mark as a member of a particular group, in this case the NAR. Accordingly, the term "REALTOR" should not be used as a synonym for a real estate agent/salesperson/broker or to generically describe an occupation, especially in view of NAR's vigilance in enforcing its trademark rights.
In these areas and more, the IP team at Miller Nash Graham & Dunn can assist you in protecting your rights and reducing your potential liability.