Express Homebuyers Wins Again As Court Decides Its Allowed To Have Opinions

from the free-the-speech dept

We just recently discussed the very good ruling by Judge T.S. Ellis in a trademark lawsuit between Express Homebuyers USA and WBH Marketing Inc. over the latter's once-valid trademark, "We Buy Houses." Ellis not only concluded that Express Homebuyers' advertising that it too "buys homes" was not trademark infringement, but also went so far as to proclaim that WBH's mark was generic and invalidated it. The generic nature of the mark was obvious and it's a wonder the USPTO ever approved it, but in the end the ruling was good.

Separately, WBH sued Express Homebuyers for false advertising, trade libel, and conspiracy as well. Much of these accusations either relied on the trademark WBH once held or targeted Express Homebuyers' discussion of the dispute in public. In yet another good ruling from Ellis, however, those claims were all tossed out as invalid.

In a fifteen-page written opinion, Judge T.S. Ellis, III of the Eastern District of Virginia concluded that WBH failed to present any facts to support its damages claims. On the false advertising claims, Judge Ellis found that WBH failed to establish any correlation between the alleged false statements and actual harm to WBH. Citing the testimony of its CEO, Jeremy Brandt, WBH could not establish and did not know “who chose not to contact or do business with WBH” in light of the alleged false advertisements.

The court also found that statements such as WBH was “wrong” in enforcing its trademarks, and that WBH was a “trademark bully” were non-actionable opinions because they were nothing more than EHB’s “subjective assessment of WBH’s commercial activity.” Indeed, the court noted that the undisputed facts established that Jeremy Brandt made statements such as “That’s how we roll. Facebook page – gone.” Additionally, Dev Horn, another executive at WBH, stated that WBH needed to “scare the sh*t” out of certain real estate investors and that WBH should “GET THOSE MOTHER F*****S,” referring to specific real estate investors.

In other words, not only is Express Homebuyers allowed to have an opinion about the legal proceedings WBH forced it into, but those opinions have been validated now by the court. Not only is it allowed to call WBH a trademark bully, but Ellis seems to agree with that opinion. With trademark bullying far too often being a successful enterprise for large companies, it's quite nice to see one get knocked around in court like this. Not out of pure pleasure, of course, but for what such rulings should signal to the larger trademark bullying community out there.

Thankfully, with this ruling, it seems this entire dispute has now come to a close, with WBH losing at every turn.

Because those claims were dismissed, the court likewise dismissed WBH’s claims for business and common law conspiracy under Virginia law, concluding that there was no underlying legally actionable conduct.

Brad Chandler, CEO of Express Homebuyers, said, “I’m big on justice in the world and today justice has been served for Express Homebuyers and real estate investors across the United States.”

That's exactly correct. Rulings going the other way would have put one hell of a burden on the real estate industry in America writ large.

Filed Under: buys homes, trademark, we buy homes
Companies: express homebuyers, wbh marketing

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.

Filed Under: trademark, we buy houses
Companies: express homebuyers