Trademark

by Timothy Geigner


Filed Under:
trademark, we buy houses

Companies:
express homebuyers



Express Homebuyers Wins Its Bid To Cancel Competitors 'We Buy Houses' Trademark

from the expressly-allowed dept

We've often made the point in the past that much of the trademark legal strife and bullying that occurs throughout the country ought to be squarely blamed on a USPTO that can't be bothered to put much thought into the trademarks it approves. All too often, the Trademark Office acts as a mindless rubber stamping facility, pushing through the application paperwork without thinking about the broader consequences of its approvals, nor the legal minutia involved into what makes a term a valid trademark. That bureaucratic lethargy is precisely how you get trademark bullies wielding trademarks that should never have been granted. And, because trademark bullying generally works, it's rare that anyone outside the USPTO is actually forced to clean up this mess it created.

But, on rare occasions, sanity puts a win up on the board. Such is the case with Express Homebuyers USA of Virginia, which defeated WBH Marketing Inc.'s trademark suit in which the latter claimed infringement based on its registered trademark for the phrase "We Buy Houses."

In a thorough and well-reasoned decision, Judge T.S. Ellis, III, of the Eastern District of Virginia, concluded that the federal trademarks “We Buy Houses” and “Webuyhouses.com” are generic, are not protected under trademark law, and therefore should be canceled. The court found that the phrase “we buy houses” has been used in the real estate industry since as early as 1898 in millions of newspapers and advertisements. That evidence, coupled with other evidence and the testimony of Express Homebuyer’s CEO Brad Chandler, was “overwhelming and unrefuted.”

Finding that the marks are generic and should be canceled was “logical” according to Judge Ellis because “allowing one member [of the real estate industry] to have exclusive use of the phrase ‘we buy houses’ would be the equivalent of allowing a professional football team to trademark ‘we play football’ or a fast-food chain to trademark ‘we sell burgers,’” which are phrases that should be available for all to use.

First, if the name T.S. Ellis is ringing in your ears, yes, he's the judge presiding over the Paul Manafort trial. That isn't relevant to this case, other than being an encouraging sign that the judge overseeing Manafort's case has some grasp of common sense. Beyond that, this case should be a wonderful counterexample for any proponents of the USPTO's staff when it comes to the job they do in approving trademarks. To approve "We Buy Houses" for the real estate market as a trademark requires such a dearth of cognition as to undermine every other bit of work that office does. As Ellis points out, allowing one entity in real estate to lock up the phrase would enable the exact kind of bullying that WBH Marketing subsequently engaged in by going after Express Homebuyers for daring to say that it too, yes, buys homes.

If the ruling had gone the other way, it would have been an unmitigated disaster for the real estate industry writ large.

The ruling is significant because, if Mr. Brandt’s company prevailed, thousands of real estate investors across the country could have been prohibited from using the vitally important phrase “we buy houses” in their marketing and advertising materials.

Having concluded that the trademarks “We Buy Houses” and “Webuyhouses.com” were generic and should be canceled, Judge Ellis also dismissed WBH Marketing’s claim that Express Homebuyers infringed on the trademarks. Judge Ellis thus threw out WBH’s multimillion dollar damages claim against Express Homebuyers.

This country is practically starving for this kind of result for trademark bullies. Too often these bullies are allowed to cut and run from trademark suits when it's clear their own trademarks are in danger of invalidation. Why in the world WBH Marketing elected to let this thing get to a ruling is completely beyond me, but invalidating bad trademarks that the USPTO is only too happy to approve can't be fully a function of bullying hubris.

But for this case, at least, the right outcome was achieved.


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  • icon
    Anonymous Anonymous Coward (profile), 20 Aug 2018 @ 6:40pm

    It's only real estate, what could go wrong?

    It's a good thing that the trademark was limited to real estate. Or maybe not (trademarks are often exerted outside of the intended or registered markets).

    Waffle House might have had a hard time buying new 'houses', which would be a real estate transaction even though Waffle House's main business is selling waffles (and eggs and coffee and various pork products, don't limit them) but would certainly restrain them from advertising for existing restaurants that might want to be consumed by the Waffle House chain. For them to suggest that "We Buy Houses" with the intent to purchase appropriate restaurant properties would be curbed.

    I know ditch diggers with a better grasp of common sense than the the USPTO sometimes exhibits.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2018 @ 7:52pm

    Well, it's good I upgraded to a hotel when I did...

    ... that let someone else have a Monopoly on buying houses. And it's just at the right place for when people get out of jail free...

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Jeffrey Loader, 20 Aug 2018 @ 8:03pm

    Be silly as letting Techdirt trademark "we shill for Google"!

    When are so many others on its tax-deductible propaganda payroll.

    This country is practically starving for this kind of result for trademark bullies.

    Well, I don't mind writing that you're accidentally right, except that "starving" is wrong word, especially since modified by "practical". The word you wanted is perhaps "ready", and the target for such results should be every corporation. In every area, people are wondering why common sense isn't applied much earlier. And of course it's moneyed interests, corporations: The Rich.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2018 @ 8:12pm

    WBH - We Bully Humans?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    bowled over, 21 Aug 2018 @ 12:40am

    and

    pussy raped

    reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 21 Aug 2018 @ 2:53am

    New trademark

    We Still Buy Houses.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Aug 2018 @ 8:30am

    How is Webuyhouses.com generic? That's an address that can be owned by exactly one person.

    reply to this | link to this | view in chronology ]

  • icon
    Andrew (profile), 21 Aug 2018 @ 10:01am

    "Too often these bullies are allowed to cut and run from trademark suits when it's clear their own trademarks are in danger of invalidation."

    Why is this allowed to happen? The same pattern is prevalent in patent troll handiwork, and responsible for much of the "success" they have extorting payments; there's no downside for them.

    There should be some reasonable way to make the case proceed after a certain point is reached unless the respondent also agrees to drop it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Aug 2018 @ 3:21pm

      Re:

      There should be some reasonable way to make the case proceed after a certain point is reached unless the respondent also agrees to drop it.

      There is—they can ask the court to disallow the dismissal. Sometimes they ask and sometimes the court listens, and then the respondent can file motions to recover fees or even continue the case. It just doesn't happen often enough.

      reply to this | link to this | view in chronology ]


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