The Best of the Legal Hotline: Tweet-URL-Trademarks-Electronic Commerce


 Tracy Rucka  |    October 09, 2009
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 Do you tweet?

A broker is using Twitter to communicate with clients and customers. What rules apply to the content of Tweets? 

The REALTOR¬ģ Code of Ethics applies to all REALTOR¬ģ electronic communications including Twitter, blogs, Facebook, text messages, etc. When REALTORS¬ģ use modern technology to communicate with clients, customers and prospects, the Code of Ethics applies to the content of the communication. Article 12 of the Code of Ethics sets forth the true-picture standards and, per Article 2, REALTORS¬ģ must avoid misrepresentation and exaggeration and remember to keep confidential information confidential. A REALTOR¬ģ can be found in violation of the Code of Ethics for misstatements or gross exaggerations made in Tweets, emails or text messages just like in print or verbal communications.

Tweets, blogs and other social media tools are great ways to keep in touch with buyers and sellers and generate leads. For example, a broker may want to tweet that he or she just closed another deal, or share information about an upcoming open house. When doing so, the broker must always keep in mind confidentiality, privacy and safety for both the agents and the consumers. For ideas and basics about using Twitter as a communication tool, see the National Association of REALTORS¬ģ Field Guide to Twitter at www.realtor.org/library/library/fg234.

Article 12 of the REALTOR¬ģ Code of Ethics provides: REALTORS¬ģ shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing and other representations. REALTORS¬ģ shall ensure that their status as real estate professionals is readily apparent in their advertising, marketing and other representations, and that the recipients of all real estate communications are, or have been, notified that those communications are from a real estate professional. (Amended 1/08).

URL trademark dos and don’ts

Can a member use the term ‚ÄúREALTOR¬ģ‚ÄĚ in his or her URL, for example, valleyrealtor.com or teamnameyourrealtor.com? What use is authorized in a URL?¬†

Members are licensed by the NAR to use, with limitations, the member marks. Certain limitations apply to the style, color, punctuation and appearance of the collection of marks. As a general rule, consider if each use indicates membership in the association or if it is being used as a synonym for the term ‚Äúreal estate licensee.‚ÄĚ If it is used as a synonym for a broker or agent, then the use is incorrect and violates NAR policy.

Each of the URLs suggested in the question would represent misuses of REALTOR¬ģ marks as described in the NAR‚Äôs Membership Marks Manual (MMM). The complete text is available at www.realtor.org/letterlw.nsf/pages/trademarkmanual. The MMM describes the improper use of the term ‚ÄúREALTOR¬ģ‚ÄĚ in URLs: ‚ÄúThe term REALTOR¬ģ may not be used with descriptive words or phrases. For example, Number1realtor.com, numberone-realtor.com, chicagorealtors.org or realtorproperties.com are all incorrect.‚ÄĚ In addition, the marks must be used with reference to an individual member of the¬† association, not a team within a real estate company.

The MMM also gives examples of authorized uses in combination with a member‚Äôs name in URLs and in email addresses: ‚ÄúFor use as a domain name or email address on the Internet, the term REALTOR¬ģ does not need to be separated from the member‚Äôs name or firm name with punctuation. For example, both johndoe-realtor.com and johndoerealtor.com would be correct uses of the term as a part of domain names and jdoerealtors@webnetservices.com and jdoerealtors@webnetservices.com are both correct uses of the term as part of an email address.‚ÄĚ

Using electronic commerce in transactions

A broker received an offer to purchase in which the cooperating broker has entered email addresses for the seller’s and the buyer’s delivery addresses on Page 1 of the offer. Is this legal? If so, what are the potential risks associated with this form of delivery? 

The broker must meet both state and federal requirements to proceed with email delivery in real estate transactions involving consumers. Both disclosure and consent are required by the Federal E-Sign law before using electronic records or signatures. One distinction under federal law is that consumers must provide electronic consent after receiving required disclosures. More information and copies of the WRA Addendum D and Consent for Use of Electronic Documents and Signatures in Consumer Real Estate Transactions are available on the WRA E-Commerce Resource Page at www.wra.org/ecommerce.

For what exactly can a licensee use the Addendum D ‚ÄĒ Electronic Document Delivery form?¬†

When it comes to consumers, a party’s consent to the use of email and electronic documents and signatures is a two-step process.

  1. The Addendum D or similar language needs to be incorporated into the offer, but if a party is a consumer, he or she first must receive the disclosures stated in the Consent for Use of Electronic Documents and Signatures in Consumer Real Estate Transactions (this form is available on zipForm¬ģ and at www.wra.org/ecommerce).
  2. The party must provide consent electronically (via email or on a website) to the use of email and electronic documents and signatures in the transaction. That is why Addendum D says, ‚ÄúIf this is a consumer transaction whereby the property being purchased is used primarily for personal, family or household purposes, each consumer (buyer, seller, etc.) has consented electronically to the use of electronic documents, email delivery, and electronic signatures in the transaction, as required by federal law,‚ÄĚ and ‚ÄúElectronic Consent Given: 0 Yes.‚ÄĚ Addendum D is looking for confirmation that electronic consent has been given by parties who are consumers.

In simple terms, to correctly include email as a form of delivery in a contract, two steps must be performed:

  1. Electronic consent (typically achieved by email)
  2. Execution of Addendum D or the inclusion of such language in additional provisions

Review the WRA Addendum D and the February 2008 Legal Update, ‚ÄúElectronic Commerce and Email Delivery,‚ÄĚ at www.wra.org/LU0802.

An agent emailed the WRA Addendum D and consent for electronic transmission to the client. The client printed it out, completed it and wants to fax it back. The agent is able to receive faxes directly to her email address. Is it acceptable for the client to fax it back to the agent’s fax number, which is received by her email? 

The essential components for obtaining a consumer’s consent to the use of electronic signatures and documents in real estate transactions are acknowledging receipt of the mandatory E-Sign disclosures and electronic consent to the use of electronic documents, email delivery of documents and electronic signatures. If the document is printed and faxed, it is fax delivery, not email delivery. Likewise, a party cannot be handed an Addendum D, or the electronic consent document, sign it and hand it back to the agent to obtain consent for use of electronic documents. The agent’s or company’s software program that can convert a fax to an email is a device on the receiving end of the communication and does not allow the client to demonstrate his or her ability to use email.

More information about email delivery is available in ‚ÄúEmail Delivery: Working with Consumer Consents to Deliver Electronic Documents,‚ÄĚ in the May 2008 issue of the Wisconsin Real Estate Magazine¬†at www.wra.org/WREM/May08/EmailDelivery.¬†

Tracy Rucka is Staff Attorney for the WRA.

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