'Real Estate Zebra' settlement in works
Denise Lones considers ethical complaints against other Realtors
By Matt Carter, Tuesday, March 8, 2011.
Real estate agent and blogger Daniel Rothamel says he's willing to give up his "Real Estate Zebra" moniker and shut down a website employing the name if real estate broker and trainer Denise Lones drops her trademark infringement lawsuit against him.
Lones, whose company provides marketing and other business services to real estate agents, filed the lawsuit against Rothamel on Feb. 22, claiming his use of zebra-themed imagery and trademarks was diverting business from her company, The Lones Group.
In her lawsuit, Lones said she has offered a publication known as "The Zebra Report" since 2005, and provided "blog services" since November 2006 using the mark, "The Zebra Blog."
Rothamel has not filed a formal response to the lawsuit in court. But in a letter to Lones that he also made available online, Rothamel denied the allegations against him, calling them "implausible and insincere" and "farcical."
Rothamel said that he remains "absolutely confident in my legal and ethical position in operating and maintaining RealEstateZebra.com," but does not want to subject himself or his family to a "long, protracted court battle 3,000 miles away from my home in Virginia."
Lones' business is based in Bellingham, Wash., and she filed suit against Rothamel in Seattle, in the U.S. District Court for the Western District of Washington.
Lones told Inman News that although she was "disappointed that Daniel continues to make (the legal dispute) so public" by posting his settlement offer online, the letter is "a great start" to resolving the lawsuit.
"We are going to respond to the letter, and we think it's fantastic that Rothamel has reached out," said Derek Newman, an attorney representing Lones in the lawsuit. Newman said Rothamel's letter opens the door for negotiation of a formal settlement agreement.
Rothamel, who did not respond to a request for comment, said in his letter to Lones that he was willing to stop operating the website he launched in October 2006, RealEstateZebra.com, and "cease referring to myself in media as 'The Real Estate Zebra.' "
He also promised to change his profile on social media websites like Facebook, Twitter and YouTube if Lones drops her lawsuit, and "cease the use of zebra stripes in any marketing or media as it relates to my real estate-related activities."
Rothamel said his offer would have "no bearing in any way on my use of stripes in referee activities" -- a reference to his work as a high school and college basketball referee. He has said his work as a basketball referee inspired his use of the zebra name and imagery.
Although Lones and Rothamel appear to be on track to resolving their legal dispute, the debate that it sparked online may have further repercussions.
Lones, who has said she's been subjected to "a firestorm of retaliation" and "online bullying" by Rothamel's supporters, said she plans to file ethics complaints against some of her detractors.
The Realtor Code of Ethics prohibits Realtors from "making false or misleading statements about competitors, competitors' businesses and competitors' business practices."
Lones said she "believes very strongly in free speech," and has "no problem that people support Daniel -- that's great." But Lones said she plans to bring ethics complaints against Realtors who she alleged were "willfully defaming me or trying to damage my business" in online forums.
Once the lawsuit against Rothamel has been resolved, "that is at the very top of my list, absolutely," Lones said.
Lones said she's also lodged a protest with the National Association of Realtors over a blog post that Todd Carpenter, NAR's director of digital engagement, wrote about the suit.
In the Feb. 28 post, Carpenter acknowledged that he is a friend of Rothamel's and joked that he was "a member of this angry mob" criticizing Lones' decision to file a lawsuit.
Carpenter advised Lones that "doing something magnanimous like dropping the suit with a humble blog post could do wonders" from a public relations standpoint.
The post, on Realtor Magazine's "Speaking of Real Estate" blog, has since been removed.
On March 4, Hilary Marsh, managing director of Realtor.org, posted a statement apologizing if the blog post had "unintentionally misled readers or created the impression that the National Association of Realtors was taking sides or expressing an opinion about a private matter between two of our valued, and valuable, members."
Lones said today that Carpenter's comments "were inappropriate, and they were extremely disappointing. NAR came out with a sincere apology. While I appreciate it, I have made it very clear to NAR that's not enough."
Lones said NAR General Counsel Laurie Janik has contacted her and informed her that NAR is conducting an internal investigation. Carpenter referred questions to Janik. A NAR spokesman said the group had no comment.
Lones said she believes a group of people got together "to attack and destroy" and "crucify" her in retaliation for filing suit against Rothamel, who's well known and liked among some real estate agents for his blog and appearances as a panelist and moderator at Inman News events.
"If you go to a hotel or restaurant and have a bad experience, that's fair game" for critical online comments and reviews, Lones said. But she alleged that many of those passing judgment on her marketing expertise and business acumen had no direct knowledge of her work.
Some online commentators have suggested that Lones could have worked out her differences with Rothamel without getting lawyers involved.
In his letter to Lones, Rothamel complained that before Lones sent a cease-and-desist letter to him last July, "you never called me on the phone, e-mailed me, nor attempted in any way to communicate with me."
If Lones had contacted him directly, Rothamel said, "you would have learned conclusively that all of your concerns are unfounded, and could have been easily resolved with a simple discussion between us."
Newman, Lones' attorney, said such disagreements often escalate when parties attempt to resolve them without lawyers to advise them. Lones said that she was left with little choice but to file suit, after Rothamel's attorney responded to her cease-and-desist letter by denying its factual allegations and legal conclusions.
Since news of the lawsuit was first reported in a Feb. 25 Inman News story, the reaction has been "intense," Lones said.
"This started on Feb. 25, and it has not stopped. Every single day, we are pummeled with bad press," Lones said. "First, you are in shock ... Now, I'm at the point where (I've decided) someone needs to stand up against this, and I guess I've been chosen to do it. I wouldn't want this to happen to anybody."
Rothamel said that if Lones wanted to accept his offer to settle the lawsuit, she needed to provide written confirmation by 5 p.m. Wednesday. Newman said Lones would respond by the deadline, but that an actual settlement agreement would probably take longer to finalize.
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Submitted by Kevin Tomlinson on March 8, 2011 - 3:50pm.
I have a question:
If all of this was NOT retaliation or meant to teach Lones a lesson...why then are the people at the center of the lynching (Meyers, Thompson AND NAR)issuing apologies?
Curious, no?
Fear of lawsuits, most likely.
Surprised at the condemnation of the bullying? For sure!
I agree that NAR and the faux paus that they continue to make in the SM arena, while purporting to be guru's/rockstars/ etc AT THE EXPENSE OF THEIR MEMBERS is repugnant.
Submitted by Frances Flynn Thorsen on March 8, 2011 - 4:25pm.
Denise Lones is correct when she says NAR has not gone far enough. NAR took down Todd Carpenter's Realtor.org blog post but his "personal" blog post remains standing.
http://snap.tc/2011/02/daniel-rothamel-doesnt-need-those-zebra-stripes-c...
Additionally, Bill Lublin takes sides. Lublin is the principal of SMMI, charged with writing and administering NAR's new e-PRO education program. An important part of e-PRO is teaching social media skills and reputation management to the Realtor ranks. Lublin also takes sides in the legal dispute between two Realtors - on Carpenter's blog and across social media platforms on his own blog, Twitter, and elsewhere. He says this on Carpenter's "personal" blog:
"Todd – you are so right on the money- Daniel doesn’t need this, but it would be a shame to see someone prevail over such a silly lawsuit. I can’t even imagine how they would show the damages they claim – hopefully it will be dismissed in preliminary objections."
Is the the type of conduct NAR wants it members to learn and emulate? A key social media staffer and educator take sides in a high profile legal dispute ... make judgment on the merits of a legal case! This is the lesson they want Realtors to learn? I am shocked and appalled.
I think this entire episode renders e-PRO totally irrelevant. This is NOT the way to teach Realtors responsible social media risk management. This is a disgrace.
Submitted by Kevin Tomlinson on March 8, 2011 - 4:43pm.
Frances,
NAR won't do anything. This, unfortunately is one of MANY social media DISASTERS -that NAR ignores because, well, clearly THEY don't have to follow their own rules....rules are for the little people.
I would think that NAR would know when a member(s) AND employee (s) break THEIR OWN rules. Even when they do nothing is ever rectified.
Just ask well, me, Greg Cooper and the Indiana Association of Realtors.
The e pro class is coming to Miami soon. It's a pretty safe bet that the e pro designation isn't worth the tweet it's twatted on.
Submitted by John Lockwood on March 8, 2011 - 5:44pm.
Kevin,
NAR is not a regulatory body (or not an effective one in any case). The Realtor code of ethics is a part of a brilliant business model -- take a group of people who have a bad public image, launder their reputations for them for a fee -- then rig vendor pricing for goods and services such as Zipforms that it's actually more expensive to do business without them than it is with them.
And hey presto: monopoly power with sinecure responsibility.
I wish I'd thought of it, but I'm not sure I could sleep at night if I had.
In any case, expecting NAR to do the right thing is like expecting not to get old and die or expecting it to be sunny every day. Yes, we all agree it would be nice, but my two cents is that happiness consists of accepting reality as it is. If NAR is inevitable, just relax and try to enjoy it.
Submitted by Kevin Tomlinson on March 8, 2011 - 6:55pm.
Crickets .........
Submitted by David Losh on March 8, 2011 - 7:20pm.
How is this article news?
Thank you Kevin for your comments here.
You have been a voice of reason.
Submitted by Kevin Tomlinson on March 8, 2011 - 7:41pm.
David from what I understand there is a big social media lab experiment w/legal eagles in the house.
Arizona Assoc. of Realtors.
I know their ears are perking up about this matter.
Submitted by Kevin Tomlinson on March 8, 2011 - 9:23pm.
I wonder what Jay Thompson thinks about this article...or Missy Caulk.
#randommusings
Submitted by Bill Lublin on March 8, 2011 - 10:05pm.
Bill Lublin CRB,CRS,GRI
CEO CENTURY 21 Advantage Gold
Visit me at MovePhilly & REreflections Click Here to
Find Homes in PA & NJ
Frances;
My right to have and express an opinion is in no way diminished by by my position at SMMI or our re-write of the e-PRO course, and I cannot understand why you take a position that it does.
In your response here you quote a comment I made out of context, in a misleading manner. Todd had made a point in his post that Daniel did not need to contest the Lones Litigation because he was more than just a set of stripes - I agreed with that point. That is not, as you typify it, "taking sides". Additionally I shared my opinion of the lawsuit - which would have been the same regardless of who brought the suit - again, not taking sides, and an opinion I continue to hold, having lived through a trademark suit a number of years ago, and being somewhat familiar with the burdens faced by the complainant. Your statement that I was "making judgment" is totally inaccurate. In a trademark case only the judge makes judgment - everyone else merely speculates and discusses their opinions - once again, a right that I have and do not abrogate through my professional achievements or business relationships.
It is still unclear to me why you feel that you have the right to express your opinions and others do not. I do not censure you for your opinions about the e-PRO course, though you have not taken the course, and therefore cannot be aware of what it does or does not teach, nor its relevancy or lack of relevancy. However though you choose to espouse an opinion that has no basis in fact, I do not fault you , since it is your opinion, and you have a right to express that, however flawed I may feel it to be.
For clarity, we should both recognize that Daniel's decision not to litigate does not, by itself indicate that Lones' position was justified or would have triumphed in court, it merely indicates that he is less willing to fight about this than she was.
In the e-PRO course you eschew, we teach the importance of reputation management and the importance of authenticity. It would be disingenuous of me to fail to live up to that standard. You seem to feel that I should be duplicitous about my opinions because I teach others how to ethically effectively and profitably use technology and social media in their business. Respectfully, I disagree.
Kevin:
I'm disappointed in your statements. You accuse NAR of not following its own rules, and say the rules are for the little people. I don’t know what rules you refer to, but our rules as practitioners are the Code of Ethics - they apply to us because we subscribe to them, and the enforcement of those rules is on a local, or in some instances a state level. They have nothing to do with the staff members of the National Association or the policies that are internal to the organization, so your statement is inaccurate and untrue. Before you accuse someone or some organization of failing to live up to a set of rules, you should clarify what those rules are. You just might be wrong.
As far as the e-PRO course goes, my suggestion would be that until you have experienced the course, its difficult to make any statement as to the quality of the course. Again, you might find out that the course is not what you think it is, once you find out what it actually contains and teaches.
I have to say your statements leave me a little sad. I thought better of you.
Submitted by Kevin Tomlinson on March 8, 2011 - 10:53pm.
Bill
You know I like you very much. I laud you for having the integrity to come here and vet this issue.
You need ME to justify my position? The mob accused Denise Lones of being a hateful person w/no right to file her suit. The "mob" didn't vet the issue before going on a mission to 'teach her a Google lesson.'
What about all the tweets like @seancarps: "@seancarp: Let's all start calling #TheLonesGroup tomorrow and asking if Daniel Rothamel is there. #savethezebra"
This is the kind of hideous high school behavior that many people in the re.net giggle about while Denise Lones was receiving threatening messages at her place of business.
@denverknox setting up fake websites? Nice, Bill.
I WILL NOT vet MY position to you.
If my comments make YOU sad---The actions of the re.net (you included) have been childish, mean-spirited and many of you could probably in violation of the COE -and in your position unprofessional.
Anyone in the corporate world knows that in these situations you keep your personal opinions to yourself. You are linked to NAR and you should do NOTHING to mar their reputation. You did that.
Bill let's talk about the "lawsuit" which I have yet to do:
If Lones' case was so ludicrous and frivolous it seems to me that I would have my lawyer IMMEDIATELY draw up a motion to dismiss.
If it was so frivolous and ludicrous a judege would have put the kabosh on it. Social media I may not know...REAL ESTATE AND Law, I do.
Bill did you know about the email that went out to over 250 people around the country today?
Let me give you a little snippet:
"Is this appropriate for any association staff member even the social media "experts?"
While I still respect for you. I am saddened that the thirst for Lones' blood was so great that most of you left your brains, and your integrity, at the door.
You didn't answer MY question: IF there was no harm meant to Lones, WHY is everyone so quick to issue apologies and retractions?
You only do that when you get CAUGHT with your pants down.
While I may not speak as eloquently as you; I speak the truth.
It is time to come off of your high horse and be the reasonable, intelligent man that I know you to be.
I like Daniel very much. His lawsuit is none of my business. This is the first time I discussed my thoughts on it. I am sorry that Lones AND Rothamel had to go through this.
What I witnessed from the re.net was appalling, juvenile, mean and unprofessional.
I could see myself being that mean bully on the playground. I never thought I would be on this side of the fence.
Submitted by Bill Lublin on March 9, 2011 - 3:43am.
Bill Lublin CRB,CRS,GRI
CEO CENTURY 21 Advantage Gold
Visit me at MovePhilly & REreflections Click Here to
Find Homes in PA & NJhttp://bit.ly/fMCl99 and told me I needed to VET my response. The arrogance is infectious. I declined" Again, you were inaccurate. I did not ask you to vet anything, I asked for a clarification which you have not provided, further, I was not arrogant, nor am I being arrogant here. As I said in my last comment, I'm disappointed.
Submitted by Bill Lublin on March 9, 2011 - 6:50am.
Bill Lublin CRB,CRS,GRI
CEO CENTURY 21 Advantage Gold
Visit me at MovePhilly & REreflections Click Here to
Find Homes in PA & NJ
Ok, I just saw that the posted response was truncated , so I'm going to need to repost -
Kevin:
1. I didn't ask you to justify your position, I asked you to explain a comment which was unclear.
2. I don't know @seancarp or @denverknows, and have no knowledge of , responsibility or explanation for, any actions you say they took.
3. My opinions are my own, and my right to express them is not abrogated in anyway by any business association I have. I am not in the corporate world" in the manner you express. I am the CEO of the companies I own, and my right to express my opinion is, once again, not limited by any business relationship I have. I don't express the opinions of anyone other than myself, and neither you nor anyone else has the right to impute those opinions to anyone else or to any organization unless I have stated I am taking a position for that organization.
4. I never said that Lones' lawsuit was frivolous - a statement that would go to her cause of action and would require me to draw a legal conclusion. What I said was that initiating the lawsuit was silly, because I felt that there would be more negative than positive impact to her business. Having had some experience with this type of lawsuit in Federal court, I am aware of the burden faced by a complainant in such a suit. Her claim shows that she had researched Daniel's involvement as a participant in a number of web based venues. Initiating a lawsuit that was obviously going to be discussed in public forums such as this was a bad business decision. I believe that the way the situation has unfolded validates that opinion. Whether Lones is demonized or portrayed as a victim, I don't think it benefits her business or her public image. Perhaps I'm wrong, but thats my opinion.
5. I agree with you, the disposition of this, or any case relies upon the judge hearing the case. However we will never know what a judge would have done if the case is settled as it seems it might be. That settlement is not indicative of the legal merits of the case (which are beyond me)but will be a result of Daniel's desire not to spend the money or energy to fight the suit, and Lones' equal desire to see the matter resolved.
6. I have not read the email you refer to , and don't think anyone can comment on a piece of an email without knowing who wrote the email, what their agenda was, what the email contained, etc.
7.You keep imputing the actions of others to me as well. You need not to do that - they are responsible for their actions and I am for mine. As to why some people felt the need to apologize, you would have to ask them for their motivation, but what I have seen is some people who apologized, not for their actions, but for unintended consequences of their actions,something they should be respected for, not lambasted. Not every apology results from having your hand caught in a cookie jar. Sometimes people apologize because the results of their action was greater than intedned.
8.I agree with you. The whole incident could have been avoided. But a lawsuit is an attack - that's why there is a defense mounted when there is a lawsuit. Let's not lose sight of that here.
9. As far as you being able to see yourself as a bully and being disappointed that you see others in that role, I think that's inconsistent. You mean that its OK for you but not for others? Or do you mean that you are allowed make mistakes and they cannot? Either way I think that the rules don't change based on who is doing what. Some people may have overstepped propriety in their responses, but that doesn't mean everyone did.
10. In response to to your allegation that my response was born of some sort of arrogance, that is untrue - I told you I was disappointed because I thought better of you - I don't think you should jump to make accusations and generalizations without a lot more factual statements. There is no arrogance there at all.
Submitted by Kevin Tomlinson on March 9, 2011 - 8:28am.
Bill
Before I "clarify" any of my statements, my first comment needs to be addressed.
You haven't answered my question about why, if no one did anything wrong, why are they issuing apologies and retractions.
The would CLEARLY show that they knew what they wrote was wrong/bad/or could get them sued.
Bill, I remember a part of your comment where you talk about how hard it would be to show damages. I don't know where that was at---but do you think with your considerable weight as a SM guru/rockstar/trainer that your actions and opining is/was entirely appropriate.
It seems to me that it was adding fuel to the fire.
That's all. I've had my say. I'm bored.
Do you directly work for NAR? If not are you contracted by them? Please clarify.
Thank you.
Kevin Tomlinson
Submitted by Brett Keppler on March 9, 2011 - 10:04am.
Hey Kevin and Bill - please trade emails and take this argument off of this news forum. Although initially entertaining, I was hoping for more name calling.
And as for this being news, it's better than another article reiterating the fact that an Ipad can be used for your listing presentation. :)
Brett Keppler
Broker/Owner for TREO, Realtors
www.BrettKeppler.com
Submitted by Bill Lublin on March 9, 2011 - 10:47am.
Brett; You know what - that's a great idea - Kevin has my email. Always glad to talk to him.
Bill
Bill Lublin CRB,CRS,GRI
CEO CENTURY 21 Advantage Gold
Submitted by John Lockwood on March 9, 2011 - 11:22am.
"Although initially entertaining, I was hoping for more name calling." -- Wow. You're definitely a rising star. Mental note: keep my good eye on Brett Keppler.
Submitted by Kevin Tomlinson on March 9, 2011 - 11:38am.
Brett,
Everyone knows i love me some blog drama...but this one went waaay too far.
I'm a very transparent guy. I prefer to keep things out in the open.
I have no names to call Bill. A few emotions; some shock-and-awe...but no names come to mind.
Submitted by Kevin Tomlinson on March 9, 2011 - 12:32pm.
It seems I need to vet and clarify...but no one ever answers my question (s):
Bill:
Do you directly work for NAR? If not, are you contracted by them? Please clarify.
I think it is a fair question, considering.
Submitted by Matt Carter on March 9, 2011 - 4:06pm.
Daniel Rothamel explains "my decision to retire the stripes" in YouTube video:
http://www.youtube.com/watch?v=T-LjAfzxqpQ
Denise Lones "speaks out about cyber-harassment" in YouTube video:
http://www.youtube.com/watch?v=evf21PU1LUM
Submitted by Kevin Tomlinson on March 9, 2011 - 4:09pm.
crickets.
Submitted by David Losh on March 9, 2011 - 5:30pm.
As I understand it this blog buries comments after a period of time so I would like to get in my two cents before that.
One of the minions told me Daniel used to work for Inman News. Is that correct?
Because the mob seems to be portraying Daniel as a lowly little Real Estate agent. He is in fact in my town today telling good, decent, hard working Real Estate agents they need to buy some of that there internet presence. He is an E-Pro, so everybody should learn from that example.
You people don't know me. You must be new here, on the internet. I have a horrible internet reputation from my repeated attacks against redfin. Big Venture Capital corporations dictating to the Real Estate market bother me. These big corporate internet Real Estate business models seem to be saying the consumer just needs some one to write it up.
Of course you can also get a mortgage, title, and escrow with that write it up order, but don't look behind the curtain. Never look at the fact mortgage money is paying for the whole charade. I should disclose I also repeatedly attack the bank, and mortgage industry, online.
Raise your hand if you know millions of home owners now owe more that the price they paid. Raise your hand if you know that since the tax credit, that the National Association of Realtors pushed onto Congress, property prices keep falling.
The consumer is the ones who are ultimately hurt by this online Real Estate business model mob, but once again, I digress.
Daniel got a cease, and desist letter back in July. The online mob seems extremely confused on what that means, or what you do. You respond, you call, you negotiate, cajole, do the awe shucks, and resolve.
Daniel bought a branding package from a company in Texas, I know because I called Daniel. The telephone, it's one of those old technology things, maybe I should have tweeted, maybe Daniel has been tweeting, and that's the confusion here.
Rather than say, "hey, I bought the branding, and yeah, when I look at it it is kind of similar," Daniel gets with the attorney. Again, for the mob, I have gotten, and sent attorney letters. In the Real Estate business it is kind of common, especially in commercial, especially in investing.
OK Daniel makes a rookie move, fine, then gets served. OMG, LOL, Inman News publishes a blog post. Big firestorm, Daniel fans the flames, then makes a video to thank people for being the angry mob that they are?
Daniel was coming to my town to sell the Inman News internet marketing extravaganza. He had a cease, and desist order, he never resolved, but he's a coming anyway? Inman News thought this was worthy of a blog post? Then another? Then another?
Who are you people? Why are you in my business?
No matter how many trick zebras you pull out, the consumer needs experienced help. This petty bickering, over nothing, has only shown that we lack Real Estate professionals in today's market place.
The consumer deserves better than you.
Submitted by David Losh on March 9, 2011 - 9:09pm.
Still crickets, but my question is if daniel was ever employed by Inman News. The staff can answer that.
Submitted by Kevin Tomlinson on March 10, 2011 - 12:23am.
He has to be. He does the Reboot thingy.
It's kind of apparent. Though no one would give you that courtesy of an answer.
How DARE you ask a question.
Did you see @respres 's homage to @tcar on his blog.
I don't like those stupid veiled blog posts. I say come out and be a man and say it. Own it. You think you are fooling someone. But it's just too simple...even for you...
They think they are being cute. But they are just vendors looking to sell things to wary real estate agents. Standing on the street corner "real estate agent, can you spare a dime--and I'll help you become a social media star JUST LIKE ME.
Greg Swann had the best name for them. OMG. I miss Greg Swann.
That is a beautiful post; a CLASSIC example of the pot calling the kettle black.
Lordy Jesus.
Submitted by David Losh on March 10, 2011 - 9:53pm.
Who the heck are you?
How did you survive this?
You seem to be the only one who got this. You jumped right in, but seem kind of unscathed.
Anyway thank you, it was fun.