Yes, real estate agents need to protect trademark rights in your brand

If you’re going to take the time to brand yourself, take steps to protect that brand. While you might not need it in the short term, it can pay dividends down the road.

I am a big believer in developing a brand for your real estate business from Day One. I’m talking about more than naming yourself John Doe Realty and ripping a logo off of Canva. To me, branding a company is a chance to define yourself for the market and build a recognizable and memorable identity.

If you’re going to create a brand, it makes sense to take steps to protect it. One important avenue for such protection is federal trademark registration. By obtaining federal trademark registration, you will substantially lower your risk of infringing someone else’s trademark or having someone else ride freely on your brand’s coattails, while you work hard and expend resources to establish and grow your brand.

The power of branding in real estate

In the real estate world, there’s a prevailing belief that “You are the brand” as an agent. While you can develop name recognition over time, I believe that naming your team or brokerage something other than the leader’s name allows more opportunity for scale and differentiation. Generally, a brand name will be easier to remember, which can only work to your advantage in a competitive housing market.

A well-designed visual identity — either through the distinct font and colors you choose for your brand, through a logo, or through a combination of both — offers you an even more important opportunity. It gives you the chance to make your brand stand out from a distance on a real estate sign or quickly during a social media scroll.

Understanding trademarks

According to the United States Patent and Trademark Office (USPTO) website: A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.

A federal trademark registration provides legal protection for you in many ways, including:

First, when you apply for federal trademark registration, you will usually want to conduct a search for prior conflicting marks before you apply. You may want to engage a trademark attorney to help you with this (more on this below).

Also, the USPTO will conduct a trademark search as part of an examination process when you submit your trademark application. These searches help limit the chances that you invest in a mark that can’t be protected due to conflicts with another party’s trademark or invest in a mark that infringes another party’s trademark rights. Think this is something you can ignore? Think again.

I recently spoke with a colleague who, after spending years establishing their brand, received a cease-and-desist letter from an existing business with the same name. Now, this broker is faced with the choice to spend thousands of dollars fighting for the brand in court or thousands of dollars establishing a new brand and replacing all of the business’s branded marketing collateral.

Secondly, a federal trademark registration helps protect your brand as you scale. Imagine you establish a brand and later want to expand into a new geographical market.

What if another agent, team leader, or broker has already used your brand name and/or logo to start a business in that market? If you have prior rights in a federal registration for your brand, if another party starts to use a confusingly similar brand in the U.S., you will have grounds to demand that they stop.

Without a federal trademark registration, you’ll have little to no legal recourse. Worse, you could end up like my colleague, losing your established brand to someone else.

I still own the national trademark for The Address, which was the name of my first independent brokerage. It’s something that I could use for a future brokerage, an app, or a startup. It could apply to the real estate industry, mortgage, or design.

You never know what direction your business will grow in, so a trademarked asset, held for the long haul, can come back into use even if the current use ends. Keep in mind though, leveraging brand rights into other channels of trade will sometimes require further searches and new registrations covering different goods/services, and you would want to consult with a qualified trademark attorney on such matters.

If you’re hoping to exit your business at some point, either through a merger or acquisition, trademarked assets can be a big part of your value proposition. An established and successful brand, intellectual property, and digital assets are generally considered more transferable than a book of business and can add substantial value.

The trademarking process

Although you can try seeking federal trademark registration for your brand on your own, it is usually best to hire an experienced trademark attorney to assist you with your trademark registration.

The complexity of trademarks cases varies widely, and even if you do successfully register your mark on your own, certain factors that can impact the protectability of your trademark rights down the road will not be obvious without the help of an experienced trademark attorney. You’ll also need to maintain your trademark by submitting documentation of its use every few years.

You’ll submit your application to the USPTO, where it will be examined and either approved, denied, or refused with the opportunity for corrective action. You can appeal a final decision if it doesn’t go your way, but all in all, it’s quicker and less expensive to work with an established and experienced trademark attorney than to muddle through a lot of back and forth with a DIY process.

Remember that, since real estate is local, a national search will only turn up conflicting trademarks in the USPTO database. You or your attorney will need to thoroughly search state trademark databases and online resources to ensure there are no additional conflicts.

A great brand is a valuable tool, and it’s worth protecting. Take the time to develop a strong brand identity, then preserve it with a trademark registration.

Troy Palmquist is the Director of Growth for eXp California, founder of DOORA Properties, and a thought leader through written content and from-the-stage live presentation.