The Sarasota MLS Sucks

Marc Rasmussen has posted a summary on his blog, in which he provides a timeline of the events leading up to the domain snatch by the Sarasota Association of Realtors.

In a nutshell:

2002 - The NAR Magazine’s Mr. Internet publishes a column advising Realtors to register domains such as [location]mls.com (e.g., thesarasotamls.com).

2003 - Marc checks with the National Association of Realtors (NAR) and the Florida Association of Realtors (FAR), then registers thesarasotamls.com

2006 - SAR asks Marc to shut down his site.

2007 - SAR demands that Marc shut down his site.

April 2008 - Hush-hush ethics hearing that Marc can’t discuss, but which the SAR lost.

July 2008 - SAR filed for a trademark with the state of Florida on “Sarasota MLS”

August 2008 - ICANN split decision finds in favor of the SAR and orders the domain transferred to SAR.

September 2008 - SAR merges its MLS into the Mid-Florida MLS. There is no longer a Sarasota MLS. Marc files a suit in federal court to reclaim his domain.

October 2008 - Network Solutions, shortly after telling Marc that his domain would stay where it was until litigation was over, promptly transfers the domain to SAR, who promptly begin redirecting its traffic to SAR’s own site. Realtors around the country react with anger and disgust at SAR’s actions against Marc.

Read it from the horse’s mouth: Marc Rasmussen vs. Sarasota Association of Realtors over thesarasotamls.com


You can help Marc by contributing to his Legal Fund.

The Sarasota MLS domain theft brouhaha has made the local news. The Sarasota Herald-Tribune carried an article on Monday, Oct. 27, 2008, summarizing the dispute between Marc and the SAR.

The article begins, “Despite filing a federal lawsuit against the Sarasota Association of Realtors to prevent them from seizing ownership of his Web site, local real estate agent Marc Rasmussen appears to no longer have control of the domain name he established in 2003.”

The article seems to be objective and fairly written, offering arguments from both sides supporting their position. But my money says that the average Joe reading this article will come away feeling that Marc has been victimized by his own association.

Read the article at the Herald Tribune website: Man fights Realtors over a Web address.

In an unexpected development, the Sarasota Association of Realtors has managed to get control of the domain TheSarasotaMLS.com, and is now redirecting that domain to the SAR site.

According to a post by Marc Rasmussen on the Real Estate Webmasters blog, Network Solutions had stated that the domain name would remain locked (and therefore would continue pointing to Marc’s new Sarasota Real Estate site) until the pending litigation was completed. Marc’s attorney is investigating the matter.

The damage has now started. All the hard work, time, effort, and expense that Marc invested in his site is now benefiting the vindictive and overbearing Sarasota Association of Realtors.

The Sarasota Association of Realtors — aka SAR — may be seeing unintended results of its campaign to steal the domain TheSarasotaMLS.com. Realtors and non-Realtors alike are rallying in protest against SAR’s actions.

Judy Orr, in her blog at Real Estate Webmaster’s Forum has a round-up of commentaries on blogs and other sites that are critical of the indefensible actions of the Sarasota Association of Realtors and its attempt to highjack the “Sarasota MLS” site from Marc Rasmussen.

A comment on that blog post points out that in the results of a Google search for “Sarasota Association of Realtors,” five of the top 10 results are postings that are critical of SAR.

Another blog post about the Sarasota MLS fiasco comments, “I see a huge movement against them coming - not in just the sheer number of newly registered domains but in a “scorched earth” seo and reputation campaign that will move forward. ”

The Sarasota MLS has a big ol’ black eye right now — a self-administered black eye, no less. Picture a clumsy bully, taking a big swing at another kid on the playground. The bully misses, but the force of his swing brings his fist around so that it connects with his own eye. Whoo! He’s got a shiner!

Morgan Carey at Real Estate Webmasters provided the following tips for anyone who wants to help Marc and, in so doing, help protect the rights of us all:

Send a letter / email to SAR…
…(the Sarasota Association of Realtors) asking them to listen to reason. Feel free to reference this post in any communications. If enough of us express our concern towards this kind of behaviour, perhaps they will realize the potential far-reaching implications of this situation and choose the better part of valor, and avoid a very public and potentially very embarrassing scandal.

Sarasota Association of REALTORS®
3590 S. Tuttle Avenue
Sarasota, FL 34239
Fax: (941) 923-0191
info@sarasotarealtors.com

Send a letter / email to NAR…
…(the National Association of Realtors) asking them to please reconsider their position on article 12. I think one of the most serious “unintended consequences” of their decision was that predatory Realtors / Associations use the decision out of context in attempts (like this one) to cause irreparable harm to another member’s livelihood and earned search engine positioning (which, by the way, has nothing to do with the words being in the domain name).

Send emails to your peers:
Send a blast email to your contact list (your peers or anyone else who would care to stand up for someone’s rights). The more awareness we can create, the more likely it is that we can apply enough pressure to the Association to convince them to listen to reason.

Write a blog post:
Syndicating quality content on the Internet is what we do, and it is one of the most effective ways to reach the millions of readers who would be appalled by this situation and be willing to help. Linking to this blog post and others like it will assist it in generating exposure in the search engines which will add additional exposure for the cause. Also through sharing different takes on a united perspective – perhaps SAR will find enough compelling comments and decide to settle and let us keep our redirect.

Diane Campbell, a member of the ICANN hearing panel, wrote a dissenting opinion of the ICANN decision.

In her opinion, she wrote:

This Panelist is not convinced that Complainant established common law trademark rights prior to the registration of the domain. None of Complainant’s historical exhibits showed a specific intention of using the term in a trademark sense; the term was used interchangeably as both a noun and adjective and never included any trademark symbol. Symbols are not, of course, required, however Complainant had faithfully applied the symbol to its Sarasota Association of Realtors trademarks where they appeared in the same Exhibits. My conclusion from the Exhibits is that Complainant used the term as the descriptive name of its database and gave no thought to any trademark status until Respondent and other realtors began using MLS in domain names. I find insufficient evidence of trademark rights.

In addition, Respondent submitted evidence that a major trade association publication advised local realtors to include the term “MLS” in their domain registration specifically to drive traffic to their sites; while the trade association may since have changed its opinion about that matter, the fact remains that Respondent had a reasonable basis for relying on the recommendation at the time when the domain was registered.

Lastly, the trade group’s ethics panel declined to censure Respondent for this domain registration. Whether or not Respondent had any right to present the ethics decision in this case is a matter for the ethics panel to determine, but use of the decision here does nothing to prove that Respondent had any bad faith intention at the time the domain was registered. I do not find the ethics opinion dispositive, but only one more link in the chain of evidence that Respondent believed he had a legitimate right to do as he did when he registered the domain. Complainant’s remedy against bad faith use is under US law for which an action may be brought without regard to the domain registrant’s good faith at the time of registration. The UDRP, however, requires that both registration and use be in bad faith. I find no evidence of bad faith registration.

Diane saw no evidence of “bad faith registration” by Marc. She saw no trademark rights inhering to the SAR in the term Sarasota MLS. And she saw, yes, that Marc had relied in good faith on the policies of and recommendations from the NAR at the time he registered and began using TheSarasotaMLS.com.

Diane saw, in effect, no reasonable basis for seizing the domain from Marc and ordering its transfer to the SAR.

Interestingly, neither the National Association of Realtors nor any local MLS board owns the trademark to MLS. This initialism, which stands for “Multiple Listing Service,” is essentially a generic term for the central repository of property listings that individual MLS boards compile based on their members’ individual listings.

MLS is a trademark owned by the Major Soccer League — but the soccer MLS doesn’t have a dog in this fight.

So… there’s no federal trademark violation here. In fact, the policies of the Sarasota MLS board, and other MLS boards that prohibit their members from using “MLS,” only apply to member Realtors, who are subject to the MLS boards’ rules and must comply with those rules in order to remain members of the MLS board in question.

Members of the public are not subject to policies of the MLS board. This means that I, as a non-Realtor, can register domains and operate websites that contain the MLS initialism. I could even garner leads from people who visit the site and turn around and sell those leads to Marc or other Realtors.

It is only Realtors themselves who are prohibited from using domains containing MLS. So Marc, as a Sarasota real estate agent and Realtor, is not permitted to use MLS in his domain name, because the Sarasota MLS board thinks it’s unethical, but I, or any Joe Sixpack off the street, can do so.

The NAR’s mission statement says:

The core purpose of the NATIONAL ASSOCIATION OF REALTORS® is to help its members become more profitable and successful.

Allowing greedy local MLS boards to treat their members the way SAR has treated Marc Rasmussen would seem to agistate against the NAR’s own mission statement.

And what, pray tell, are SAR members getting for their money? A bunch of self-serving board members who, instead of promoting the professionalism of the industry and helping their members, instead prosecute and persecute their members who gain success through hard work.

After a jury of his peers found that Marc was not misrepresenting himself or his site as the official Sarasota MLS, or that he was attempting to confuse or mislead the public through his domain, the SAR then filed a complaint with ICANN.

This is the essence of the ICANN complaint against Sarasota real estate agent Marc Rasmussen:

A. Complainant

Complainant contends that the disputed domain name is identical or confusingly similar to service marks in which Complainant has common law trademark/service mark rights. They are: “Sarasota MLS,” “Sarasota Multiple Listing Service,” “Sarasota Association of Realtors MLS,” and “Sarasota Association of Realtors Multiple Listing Service.” The SARASOTA MLS mark is at issue here. Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name and that Respondent operates a website using the domain name to mislead the public to believe that Respondent is the source or has control of the Sarasota Multiple Listing Service. Complainant alleges that Respondent registered and is using the domain name in an effort to attract Internet users to his website for commercial gain by taking advantage of confusion with the Complainant’s mark and creating an impression that Complainant sponsors, endorses, is affiliated with or controlled by Respondent.

Source (and full text text of the complaint and decision): National Arbitration Forum Decision

The outright theft-via-ICANN of Marc’s domain name TheSarasotaMLS.com will have effects that go far beyond the domain name itself.

Marc worked long and hard to establish his site in the search engines so that he would benefit from being at #1 or in the top ten for many Sarasota real estate searches. He has added valuable content to his site that has generated incoming links from other sites. The SAR will now benefit from those incoming links — not only for the direct traffic they’ll bring, but as a result of the effects that incoming links have in the search engines.

People who know anything about search engine know that good incoming links from other sites are an essential part of a site’s performance in the search engine results — particularly Google. Marc now has the same site on a new domain — a site that contains all the quality content that was the first site, but does not have the benefit of all the inbound links that the first site garnered over the years.

Marc will have to spend untold hours contacting all the sites that link to the old site, asking them to change their links, and then wait for an indefinite period of time while Google and the other search engines recrawl those sites and recompute the value of those links.

Until those links get changed and re-crawled, SAR will benefit from those links.