One person recently asked about a certain real estate industry term. He said that everyone in his office calls themselves realtors and was wondering if realtor was a generic term for real estate agent. The term REALTOR® was coined in 1916 and both terms were registered as trademarks in 1949 and 1950.

©, ™, ®. These little symbols may look small on the printed page, but they speak volumes in the world of business law known as intellectual property. Intellectual property, commonly known as IP, refers collectively to the legal entitlements granted to commercially valuable products of the human intellect, and include: Inventions (protected by patents), trade secrets (protected by trade secret law), product packaging design (protected by trade dress law), public personae (protected by right of publicity), and literary and artistic works (protected by copyright and trademark law).

First, let's take a look at the symbols ™ and ®. These are the formal designations of a trade name. The definition of a trademark by the U.S. Patent and Trademark Office (USPTO) is “a word, name, symbol or device that is used to indicate the source of the goods and to distinguish them from the goods of others”. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. What’s the difference between a ™ and a ®? The USPTO states that “any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the agency. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending.”

Now, the big ©. This is the formal designation of a copyright. A copyright according to the U.S. Copyright Office, “is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works… Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is considered to be the author.”

Why is copyright so important? It gives you the right to protect what you create: Listings, flyers, graphics, photographs, whatever comes from your intellect.

To be covered under copyright law your creation must be original and in a concrete “medium of expression.” This means that you cannot copyright “facts.” But, a database is a protectable expression as a compilation even if it contains facts. The protectable expression in a compilation is its arrangement and coordination, and can be infringed upon by retrieving several or a substantial number of items -enough to copy arrangement and coordination of the database.

Under current law, a work is protected whether is it registered or not. Registration makes the work more visible and is good for database protection, and is needed for enforcement. The appropriate notice is the letter c in parenthesis, © or the word “Copyright” or the abbreviation “Copr” and the year of first publication of the work and the name of the owner of the copyright. The notice must be fixed so that you are giving reasonable notice of the claim of copyright.

Now, with all of your new-found knowledge of intellectual property law you should know that whenever you use the word REALTOR® or any other trademarked term you must use the ® symbol, and that the only real estate agents who may call themselves REALTORS® are bona fide members of the National Association of REALTORS®. In a recent ruling, a three judge panel of the U. S. Trademark Trial and Appeal Board ruled that the terms REALTOR® and REALTORS® are not generic terms for real estate agents. I use the term ‘real estate professional’ as a generic term as there are hundred of thousands of fabulous folks in the industry who are not a member of that organization.

Protecting your intellectual property is a best business practice you want to keep as a high priority. After all, you spend countless hours and dollars creating these assets. It is essential to your bottom line to keep it safely shielded from unscrupulous fraudsters.

Darity Wesley is CEO and Legal Counsel for Privacy Solutions, Inc. a San Diego based consulting firm. Her team of Privacy Gurus® work with you to create policies and procedures to establish the expectation of privacy for your members, clients, customers, prospects, affiliates, associates, employees and vendors. You can reach her at (619)670-9462 or Darity@privacygurus.com