Thanks for sharing. Quite the interesting look at both of these signs. Pretty funny: A balloon and national colors, can't imagine more than one person using those images.

Keith, I appreciate the well articulated comments, and for the most part, agree with you. However, I must take issue with a couple of your points:

"While I appreciate the fact that the RE/MAX balloon is one of the most recognized brand logos in the United States, it should also be pointed out that the tri-colored banner was also trademarked."

Yes and no. What was apparently trademarked was Re/Max's particular use of the red-over-white-over-blue and in the trademark drawings the three colors are equal thirds. Re/Max's shades of red and blue are also distinct.

What Re/Max is attempting to do is use that limited trademark to include all uses of any proportions and any shades of red-over-white-over-blue, a much broader standard.

Don't forget, there are only three primary colors (red, blue, and yellow), and red and blue are the only ones that contrast well with white. Moreover, the legal standard is likelihood of confusion, and not the possibility of confusion. You also said:

"With all the combinations of colors and designs of signs available, it would be a simple matter to “distance” oneself from any confusion created by this situation, if that were the true motivation."

Shortly after launching our national company (in early 2004) we hired one of the top design firms in the nation to develop our company brand marks, logo, and colors. We also received trademarks on those marks and colors. In other words, as someone who has spent tens of thousands of dollars developing a brand and trademarks, I respect Re/Max's trademarks and unique branding.

The difference is that our company is not attempting to broaden the scope of our trademarks by intimidation or threats of legal action. Re/Max is. It is very clear from this small informal sample that the only one remotely confused by our sign design is Re/Max.

Thanks again for reading and for your comments.

As a Realtor for 37 years and a current owner of a RE/MAX office, I would like to clarify a few issues being bantered about in this blog. Corporations of all types spend millions of dollars promoting their brand and thus, must protect their branding very aggressively. While involved in ownership of a Century 21 franchise in the 70's, I watched these same issues being fought. Now that that franchise is no longer the "gold standard", fewer attempts are being made to emulate that business model. It should come as no surprise that many attempts are made to look similar to what most experts accept as the leader of an industry. I would argue that many inside the real estate industry consider Keller Williams to be largely a knockoff of the original RE/MAX concept.

While I appreciate the fact that the RE/MAX balloon is one of the most recognized brand logos in the United States, it should also be pointed out that the tri-colored banner was also trademarked. The fact that trademarks were granted for both the balloon and the banners on behalf of RE/MAX would indicate that there is adequate legal basis for RE/MAX's actions and only a judge can determine whether Mr. Jones has crossed that legal precipice. As to the simplistic argument that RE/MAX doesn't own the red, white and blue colors, it is the combination and design that has been trademarked, not the use of the colors in their entirety. With all the combinations of colors and designs of signs available, it would be a simple matter to "distance" oneself from any confusion created by this situation, if that were the true motivation. Is the tri-colored banner so compelling that your business model would fail if you went to a sign that say, is similar to a Keller Williams or Coldwell Banker sign? But I can assure you, Coldwell Banker would fight feverishly to protect it's brand as well. A cynic may even question whether it isn't good for business to go against the large, demonic corporation. After all even I like to root for the underdog! Just don't forget that RE/MAX is also made up of individual business owners that have worked hard to achieve the current position and must always be vigilante to competitors efforts.

Lastly, to the claims of John Squires. The KW model is based on increasing agent count. The RE/MAX model is based on increasing market share with top-producing agents. KW agents average barely 5 transactions annually compared with the RE/MAX average of 12. In market downturns, marginal agents may tend to join brokerages such as KW where they can keep a real estate license active while incurring minimal expense. The RE/MAX model appeals to agents who are selling real estate - not riding out a down market. RE/MAX agents sell more real estate than anyone else. This is due, in part, to having the most recognizable brand in real estate!

As a fellow Realtor, I wish you luck and hope there's an amicable resolution.

If you switch to verticle striping of the colors the French governmtnet may come after you : )

So....Lemmee se now....I guess all other real estate companies have to use black and green?

I can't wait for the judge to entertain this frivolous lawsuit! I hope he sanctions AND fines the attorneys bringing this suit to his courtroom!

this is, but isn't, amusing. The RE Brokerage company I work with changed its signage several years ago due to the exact same gorilla pressure. Our signs? Maroon band over white band over black band with company logo in the upper right. ZERO similarity in color and logo/placement, but our company caved due to not wanting to spend a bunch of bucks on a frivolus legal fight. Beat these guys for us will ya!

The guy "John" from Remax is a pompous snot and probably couldn't sell eyes to a blind man. Keller Williams is blowing the doors off of Remax agent for agent in sales and recruiting, and I can see why. Gary Keller allows the agents to decide the design and colors of their own custom signs, as he realized many years ago, successful companies are agent-driven. Happy and educated agents are successful agents. After watching the "cream of the crop" Remax agents stream over to Keller Williams over the past few years, all doubt is erased from my mind why Gary Keller is so successful. Our signs are red and white. Do you think for 1 minute Gary Keller would take time to threaten a small broker over their sign colors? No, he is too busy writing #1 best sellers on real estate business models. I am targeting another neighborhood this year to expand my farm territory. I'm thinking I might just go patriotic this time with red, white and blue. As long as the "Keller Williams" logo is on the sign somewhere, I'm good to go.

Thanks for your comment, Charles. The legal standard is "likelihood of confusion". The fact is likelihood of confusion is not the same as "the possibility of confusion".

I cannot believe that any court of competent jurisdiction will give Re/Max exclusivity on 2 out of the 3 primary colors without insisting on very specific and strict limitations. Maybe I'm wrong. If I am, I will have no choice but to honor a court's decision.

I will change our corporate sign design when either (1) Re/Max convinces me that we have infringed on their copyright (not some vague claim on red, white, and blue being their exclusive property); or (2) a court orders me to do so. I am not going to be bullied by Dave Leniger or any of his corporate thugs.

Last time I checked, we had laws protecting the public from monopolistic business practices. Thanks again for reading and for you comment.

Matt,
I understand your frustration. I also understands RE/MAX's stand, having been a RE/MAX Broker Owner in the past. Infringement was a concern and has been battled regularly since the mid 80's, even in my own market. Is the Balloon logo an integral part of their marketing? Absolutely. Is it the only part? NO. Is their control over the use of the balloon and colors strictly controlled in their own agent's personal advertising? Absolutely.

Upon a close look, your sign is clearly not a RE/MAX sign. Subconsciously by someone not looking closely, one certainly could believe they just passed a RE/MAX sign. I've received calls in my market of people who "thought" it was a RE/MAX sign.

You are obviously a principled person. I am as well and understand your desire to fight; however, would it not be practical & much cheaper to modify your sign somewhat versus hiring attorneys?

Good luck on whatever you decide.

Charles
RE/MAX agent since 1983

Percentage of colors used is similar. IE. percentage of blue, red. But still with that said there is no confusion RE/MAX is identified by its "logo" the balloon. They apparently they have nothing to do so attorneys are charging corporate $$$ to send out stupid "scare" letters. I had it happen to me in another industry that I ran. You have my vote not correlation.

Well, you should have an attorney send them a letter back as a tax paying citizen of the United States you would be considered having some rights to ownership to display the colors red, white and blue and they should “cease and desist” infringing on the United States colors because some people might confuse Re-Max as being affiliated with the United States government by using the colors of our flag. Oh, wait, we stole the colors from the British. Maybe you can get someone from the British government to send them a letter.
Such fools!

Michael
Broker

Awesome! I posted both their letter and mine, and I am afraid my response pales by comparison.

Suggestions: Reply--in a business-like manner on company letterhead--and demand that Remax provide you with written documentation outlining the specifics of the trade-dress on which they they claim you infringe. Be sure to demand exquisite detail on the following:

-The specific Red, White and Blue color values of Remax's trade colors in all predominant print and video color rendering formats [RGB, YCrCb, CMYK, Pantone Color, etc.]. If you happen to use the exact same red and blue values as Remax in a majority of color systems, then tweak your corporate trade dress colors to slightly different [yet equally effective] red and blue values and notify them that you've moved to comply with their request. Requre that Remax send you actual reference samples of all signage, print materials, uniforms, and other trade dress on which you purportedly infringe.

The margin of color value rendering error Remax claims to "own" on either side of the red, white and blue color values of their trade dress due to print material and mechanical variences, measurement error, fading, perceptive distortion by various ambient light sources, etc.

The precise relative and/or absolute proportions of Remax's red/white/blue stripes. Can you revise the proportions of your stripes or show that your stripe layout is not the same as Remax's in some way?

Also require that Remax provide you with specific citations and instances of your purported infringement [what specific sign, when, where, etc.] with a list of complaintants, photos of your infringing installations, etc.

Here's an example of another "Goliath" attempting to intimidate a small mom-n-pop and the mom-n-pop's brilliant and effective response:


Blue Jeans Cable Strikes Back - Response to Monster Cable
by Tom Andry — last modified April 17, 2008


Not long ago we reported that Monster Cable had issued a cease and desist letter to Blue Jeans Cable about their Tartan cables. Little did the lawyer drones over at Monster know that Kurt Denke, the president of Blue Jeans was, in a former life, a lawyer by trade. Oops! Someone pushed around the wrong "small" company! While we are no legal experts, we recognize humor when we see it. And this is funny. With Blue Jeans Cable's permission, we've included their full response to Monster's letter below. We even discussed it before its release on AV Rant. Kurt wants to keep this entire process completely open to the public and we're more than happy to oblige. Enjoy.


__________

RE: Your letter, received April Fools' Day

Dear Monster Lawyers,

Let me begin by stating, without equivocation, that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster's, in form or in function, the better.

I am evaluating your claim that the connectors on certain Tartan brand products infringe Monster's design patents and trademarks. However, the information supplied with your letter is plainly inadequate to support a claim of infringement and so I am writing to you to ask for further information and clarification regarding your claims.

I will begin by addressing your trademark/trade dress claim. You have referred to two trademark registrations, and have attached some printouts from the USPTO system but the depiction of the marks on the drawings provided is small and indistinct, making it difficult to determine exactly what the alleged resemblance is, and I need further information from you.

First, I need legible, scale drawings of the marks, preferably with dimensions shown on the drawing. To the extent that drawings are inadequate to show the nature of materials, finishes, print legends, colors and the like, I will also need examples of each of Monster Cable's actual uses of these marks in commerce; actual physical examples would be best, but photographic reproductions might do. As you will understand, these considerations are essential to any claim arising out of trade dress, as you are alleging in essence that there is a resemblance sufficient to cause confusion over the identity or origin of the goods, and no mere line-drawing can suffice.

Second, I will need copies of the trademark applications and any correspondence between the applicant and the USPTO in support of the applications.

Third, you have not identified the Monster Cable products in question, in actual use and distribution in commerce, whose trade dress you allege has been appropriated. I have reviewed Monster Cable's online materials and have examined connectors on various Monster Cable assemblies in local retail outlets and am unable to determine which, if any, of these are thought by Monster to represent use of these particular marks. I am also unable to determine from this review whether Monster Cable actually offers any product for sale to which the Tartan connectors are alleged to be particularly similar. My own sense of it, in looking at the connectors, has been that there is no similarity between the Tartan connectors and any of the many Monster Cable connectors beyond the general functional and conventional characteristics which all or nearly all solder-cup, mechanical-assembly, barrel-style RCA-type connectors share. It may be that there is some line of products to which you have intended to refer but which I have not found in Monster Cable's marketing materials or displays; but if so, you will need to show me specifically what product it is, and you will need to call to my attention the specific aspects of the connector design which you contend constitute unique Monster Cable trade dress, what the associated secondary meaning of those aspects of the trade dress is, and in what manner and by what characteristics you allege that this trade dress has been appropriated.

Fourth, if the dimensional characteristics of the connector as used in commerce vary from the dimensions of the scale drawing of your mark, I will need a proper scale drawing, with dimensions, of each version of the actual connector as used in commerce, as well as photographs of the connectors showing actual in-use finishes. If there is more than one such connector design in actual use by Monster Cable as to which appropriation of trade dress is alleged, of course, I will require this information for each and every such design.

On the basis of what I have seen, both in the USPTO documents you have sent and the actual appearance of Monster Cable connectors which I have observed in use in commerce, it does not appear to me that Monster Cable is in a position to advance a nonfrivolous claim for infringement of these marks. There simply is not sufficient resemblance between the Tartan connectors and any mark or any example of the marks' actual use that I can find to support such a claim. But if you have further information for me on that point, you are welcome to submit it.

You have also supplied me with partial documentation on five design patents which you claim these connectors infringe. I will begin by observing, first, that the five design patents are so very much unlike one another that it is very hard to imagine that any product could actually infringe more than one of them at a time; anything close enough to one of them to be deemed an infringement would, by that fact alone, be too dissimilar from the other four. The dissimilarity of the Tartan connector from each of them is readily evident.

I should add that, for the purpose of this letter, I am assuming that these patents are valid. This is in no way a concession of the point. In fact, this is a very significant and likely inaccurate assumption, and you should expect the patentability of these designs to be under attack if you commence an action for infringement.

The fact that you have presented me with five completely distinct design patents, I have to say, gives me pause. I would go over them and detail the differences between the Tartan connectors and those shown in the patents, but if you are taking the position that it appears you are taking, there might be very little point in discussing it with you. Take, for example, the patent you mark as Exhibit B. The connector shown there is substantially different from the Tartan connectors in every respect, unless one ignores design specifics and focuses on the core attributes of the connector which are dictated by function. If your view of Exhibit B is that it is to be construed broadly enough as to encompass the Tartan connector, it is very hard to imagine that there is such a thing as a solder-assembly style RCA plug which is not similarly, in your view, encompassed by this patent. And, needless to say, it is very hard to imagine that any court would ever adopt such a view of the patent's scope; if you file on this sort of basis, you are in Rule 11 frivolous-claim territory.

I will point out, though you are no doubt already well aware, that the gross morphology of the RCA plug is pretty well dictated by function. RCA plugs intended for soldering and assembly have certain attributes in common; their diameter is constrained by the need for the shell to fit over an internal set of solder points and cable clamp, and their length by the need to provide some room for cable end prep and attachment; they are generally radially symmetrical along the anterior/posterior axis owing to the need to accommodate both a round-profile cable and the round-profile RCA socket; the connector end is constrained by the standard dimensions of the RCA socket, and by the need, as the socket provides for no bayonet or screw attachment, to provide sufficient tension on insertion to maintain good mechanical and electrical contact; the barrel, grasped by the user for the purpose of insertion and removal, requires traction which is typically provided by raised or recessed rings, plastic inserts, knurling, or the like; and transition between the connector and the cable to which it is attached requires, in one form or another, a reduction in barrel size at the connector rear. It is my assumption, since you cite design patents only and no utility patents, that Monster Cable makes no claim here for any functional aspect of any of these designs; if I am wrong, please let me know what utility patents Monster Cable does hold, and what claims, if any, Monster asserts on the basis of those utility patents.

Further, on that point: one of the design patents you attached is closely related to a utility patent applicable to the same design, and you failed to point that fact out. I need to be able to rely upon the completeness and accuracy of the information you send to me and I find this sort of omission deeply disturbing because it is clear that the effect of this nondisclosure is to obscure the real significance of the patent features. Similarly, as I note further below, you omit reference to another patent Monster has held which appears, frankly, to be fatal to your position. If you expect to persuade me, you had better start making full, open and honest disclosures; I will find out the facts sooner or later in any event, but the impact upon your credibility will not be repaired. It looks like when you sent this letter, you were operating on the premise that I am not smart enough to see through your deceptions or sophisticated enough to intelligently evaluate your claims; shame on you. You are required, as a matter of legal ethics, to display good faith and professional candor in your dealings with adverse parties, and you have fallen miserably short of your ethical responsibilities.

My sense, in looking at these five patents, is that either you are attempting to present some argument that I simply do not understand or you are arguing for untenably broad coverage of these patents which would sweep every functional aspect of the typical solder-assembly RCA connector within the scope of a handful of mere design patents. You need to clarify this, and frankly, I think you need to indicate to me which, if any, of these patents you actually contend are relevant to the present discussion. It cannot possibly be that you believe that more than one of these patents is pertinent, and if you insist that they are, we cannot have an intelligent dialogue on this subject. Once you have identified the patent which you contend is relevant, I need to see the file history and the references to prior art; I need copies of the applicant's correspondence with the USPTO; and I need a clear and cogent explanation from you as to exactly what aspects of the Tartan connector design are alleged to constitute the infringement, and how.

Additionally, if you are able to identify any of these patents as applicable, please let me know whether Monster Cable presently sells, or has at any time sold, any products bearing connectors which are in conformity with the patent drawings or which are otherwise contended to be within the coverage of the patents, and identify those products for me. Please also provide photographs and/or physical examples of these connectors as manufactured and sold.

Also, please provide me all of the information referenced above as it relates to your expired patent D323643, a copy of which I am attaching. I will need to know what products Monster now offers or at any time has offered for sale which were believed to fall within the scope of D323643, and what claims, if any, of infringement of D323643 were made against others by Monster, whether those claims of infringement took the form of correspondence only, litigation, or otherwise. Please let me know which, if any, products Monster has ever sold or offered for sale which were marked with the patent number, or other reference, to D323643. Please also advise me whether, in your view, the Tartan connector does or does not fall within the scope of D323643, and if it is your view that it does not, please identify each and every difference between the Tartan connector and the connector represented by D323643 upon which your view is based. (On that note, let me point out to you that the "turbine cut" feature is irrelevant here as your client makes only functional, not design, claims for that feature in its marketing materials for the product.) I would assume that you would agree with me that if the Tartan connector is less dissimilar from the D323643 patent than from any of the five patents you cite in your letter, then the Tartan connector is within the coverage of the prior art and cannot, as a matter of law, infringe any of your client's current patents.

I must also point out that unless there is a good deal of background information you have not provided me which makes the case otherwise, Monster Cable cannot possibly square its patent infringement claim(s) with its own patent history. Two views of the matter might be taken; the first, which is my view, is that none of the design patents, including D323643, encompass the Tartan connector. If that is so, of course, the claim for infringement fails. But if one grants the sort of breadth to these patents that you appear to wish to do, a problem arises for Monster. D323643 is the least dissimilar to the Tartan connector of any of the patents, and stands as an obstacle to any claim of infringement of the others because it establishes prior art; if its scope, like the others, is granted the breadth you argue for, then the Tartan connector falls plainly under the prior art and cannot constitute an infringement of the later, and more dissimilar, patents. Read the patents narrowly, and Monster loses; read them broadly, and Monster loses. You are welcome to point out any error in my reasoning; but I have to say that I will be unreservedly surprised if you are successful in doing so.

Please also let me know whether Monster Cable or any related entity has brought actions to enforce any of the patents and trademarks referenced in your letter or above, and provide me with the jurisdiction, court and docket information pertaining thereto, along with copies of any decisions or judgments resulting therefrom. If any such litigation proceeded through discovery, I will need all discovery responses, including document production, issued by Monster, as well as copies of any and all depositions taken and the exhibits thereto.

Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable's principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable "family," and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm's-length transactions.

Once I have received the above materials and explanations from you, I will undertake to analyze this information and let you know whether we are willing to accede to any of the demands made in your letter. If my analysis shows that there is any reasonable likelihood that we have infringed in any way any of Monster Cable's intellectual property rights, we will of course take any and all action necessary to resolve the situation. If I do not hear from you within the next fourteen days, or if I do hear from you but do not receive all of the information requested above, I will assume that you have abandoned these claims and closed your file.

As for your requests for information, or for action, directed to me: I would remind you that it is you, not I, who are making claims; and it is you, not I, who must substantiate those claims. You have not done so.

I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

I will also point out to you that if you do choose to undertake litigation, your "upside" is tremendously limited. If you somehow managed, despite the formidable obstacles in your way, to obtain a finding of infringement, and if you were successful at recovering a large licensing fee--say, ten cents per connector--as the measure of damages, your recovery to date would not reach four figures. On the downside, I will advance defenses which, if successful, will substantially undermine your future efforts to use these patents and marks to threaten others with these types of actions; as you are of course aware, it is easier today for your competitors to use collateral estoppel offensively than it ever has been before. Also, there is little doubt that making baseless claims of trade dress infringement and design patent infringement is an improper business tactic, which can give rise to unfair competition claims, and for a company of Monster's size, potential antitrust violations with treble damages and attorneys' fees.

I look forward to receiving the information requested and will review it promptly as soon as it is received.

Sincerely,

Kurt Denke

Matt: You should trademark "blue-under-white-under-red on a yard sign." Good luck!

I am a RE/MAX agent and I would never confuse your sign with a RE/MAX sign- even at a distance. RE/MAX is most certainly more well known for their balloon logo than the red over white over blue design. They use the balloon logo quite frequently & independently of the red/white/blue as well. I'm honestly having difficulty recalling ever seeing them use just the red/white /blue without the balloon. The balloon is their primary trademark and I think most people would agree. Not the red/white/blue. Like I said I would never, ever confuse your sign with a RE/MAX sign and I'm a RE/MAX agent- and I see the RE/MAX signs everyday. But that is just me...

This is funny! I used to own a franchise from the executive company that re/max stole the 100% thing from (according to the executive company), and ALL of our signs were (and still are), RED WHITE AND BLUE! LOL!

John,

Thank you for reading my previous blog posts. No offense, but I'm going to have to take exception to your comment. You have been drinking the Re/Max Koolaid too long.

You said, "Your argument is flawed here to refer to a gas station and the US flag for your post and other comments perpetuate the ignorance. The problem is not that you are using red, white and blue it is how and the order in which you choose to use them."

First, I never raised the gas station issue, nor the flag, although both readers have valid points. Let me clarify exactly what happened.

They (Re/Max) asserted that consumers would be confused and unable to distinguish our companies’ respective signs because of our company's use of red-over-white-over-blue in our national yard sign design.

From their (Re/Max) letter (go read it again):

"The public has come to associate the RE/MAX red-over-white-over-blue sign design with the services provided by RE/MAX and its network of real estate brokerages and affiliates....

In our experience, a significant number of consumers associate red-over white-over-blue signs with RE/MAX, even if the colors or horizontal bars are not identical, to the proportions used on the REIMAX sign design..."

Both of these claims make assumptions they cannot prove nor have they provided evidence to support. More importantly, is the legal issue here:

1) Trademark law requires the standard of “likelihood of confusion”. As you can see from this “survey”, nobody (except you) was confused.

2) Determining factors when deciding whether consumers are likely to be confused are the following:

(a) Strength of the Mark. While Re/Max may be known for it's name and balloon, the red-over-white-over-blue is hardly a strong mark.

(b) Proximity. Is there evidence that our signs are ever in close proximity to theirs? I am not aware of any.

(c) Similarity of the Marks. Our companies' signs are not even close. Different colors of red and blue, different proportions of those colors, Re/Max overlaps logo while FavoriteAgent.com does not, theirs is 3 dimensional while ours is 2 dimensional, just to name a few.

(d) Actual Confusion. There has been no evidence of actual confusion.

(e) Marketing Channels. We do use the same marketing channels.

(f) Degree of Caution Exercised by the Typical Purchaser. Real estate purchases are typically the most expensive purchase customers make. As such they exercise a great deal of caution in making decisions related to the purchase and are less likely to be confused by companies whose signs are similar.

(g) Defendant’s Intent. Now this one is plain funny! I am the President and founder of FavoriteAgent.com and my intention is to distance myself as far from Re/Max as possible. We have an entirely different business model and are trying very hard to differentiate ourselves in the marketplace. We designed our sign so as to use our company's colors and to look totally unique.

As you can see, Re/Max is clearly trying to bully us into submission because they are big. They have failed to make a single argument as to their right to block our present sign design.

I would encourage you to read this link. http://cyber.law.harvard.edu/metaschool/fisher/... After you do, I trust you will feel differently. Thanks again for reading and for your comments.

Mr. Jones,
while I have read and enjoyed a few of your blog posts, I would like to express a different view here.

There have been several companies that have tried to use the Re/Max signage guidelines. Why would Century 21 signs utilize the red over white over blue signage, are they not the "gold standard"... why? Branding is important and that has been mentioned on the Real blogging site before.

Your argument is flawed here to refer to a gas station and the US flag for your post and other comments perpetuate the ignorance. The problem is not that you are using red, white and blue it is how and the order in which you choose to use them. THAT is the infringment and in order to protect the Re/Max brand from the others that use our branding, they need to pursue.

They sent you the documents as you showed in the post, read them again. All of those that use our trademark must be notified to cease and desist as it has already been fought in court and Re/Max won and they will probaly will again.

If someone reposted one of your blog postings without proper credit? Yes you would complain of copywright infringment I am most sure. You are doing the same. Inverse the colors, use vertical lines make the blue a black, whatever, but playing only to an element of the arugument that does not even apply show more of you fear toward Re/Max market share grab that is growing.

The loss of agents is nationwide see the NAR, but a boutique office of one cannot loose membership, without going out of business. Unfourtunatley that is happenning to many of our collegues as well.

Good Grief - are we next. Have you ever seen the Realty Executive Signs?? Red, White and Blue! But we were here first. RE/MAX was founded by a former Realty Executives Agent.
Does this info help??

Thank you guys for your encouragement! This is one I'm prepared to fight, if it comes to that. As the smallest kid in my class growing up, I learned first hand that the school yard bully is often more talk than action.

But, I am glad you weren't confused! I personally thought the two signs were very different. In fact, we try very hard to differentiate ourselves from Re/Max... not look like them! Thanks again!

A Remax agent ripped me off for years by stealing my trademark...Remax did nothing to stop him..so screw them

Matt,
There is NOTHING confusing to me about the two signs. Besides, it is the balloon that creates the brand for ReMax--not the colors. The balloon and perhaps the overall design and proportion. I would bet an orange, blue, and white sign or a red, cream, and blue one in the same design would generate the same positive recognition for them as the red, white and blue if the signs were not side-by-side.

The proportion and design of your sign is not at all confusing, whether side-by-side or not! I agree that the real generator of this ridiculous charge is the loss of agents/business due to both the economy and the increased competition by other "umbrella" or pay-per-transaction companies. Please don't give in on this.
Good Luck,
Phyllis

Matt,

Stand your ground. Let me see- Red, White and Blue...hmmm. Wait, aren't those the colors of our National Flag??

What a bunch of bovine scatology! It looks like REMAX is reacting to there loss of market share/number of agents??

Thanks for your comment and your encouragement, Terry. It means a lot. We are on good legal footing, and we intend to stand up to them. We realize that they are much bigger, but the law requires the standard of "likelihood of confusion". As you can see from this "survey", nobody was confused.

In deciding whether consumers are likely to be confused, the courts look at several factors: the strength of the mark, the proximity of the goods, the similarity of the marks, evidence of actual confusion, the similarity of marketing channels used, the degree of caution exercised by the typical purchaser, and finally, the defendant's intent.

Based on the results of this experiment, I doubt they will be able to produce evidence of actual confusion. It is a stretch, and I personally think it's now time for us to stand up for what's right.

Let's be real: The USPTMO never intended for Re/Max to be able to completely tie up the use of red and blue on yard signs, but simply to protect them from competitors who wanted to steal their unique sign design and with it their customers. We've done neither.

Again, thank you for your encouragement. For us, this is simply a wrong we're willing to fight. I hope it doesn't come to that.

Hi Matt,
My family once owned and operated a small local chain of gasoline stations in Spokane,WA. During that time Chevron/Standard oil sent a group of 12+ powerful corpoate attorneys to Spokane from NYC to sue our little company for the exact same thing. We didn't have the resources at that time to fight them so we changed the colors. That being said, why arn't those two huge companies doing battle with each other since they both seem to think that they control the use of those colors. In addition, how have we ever been able to determine if we were pulling into a real estate company or a gas station or a political rally for that matter. Good luck with it!
Terry

I apologize to those of you who tried to read my response and got a broken link. I had the document hosted on Google documents and for some reason some got the message, "document not found". Weird. So, I linked to the documents on my blog servers as soon as I heard there was a problem. The links should work now. Sorry for the glitch.

Sign #1 - Re/Max...strange, I thought Re/Max was known for their balloon!