Thinking about selling your house because you heard it is a sellers’ market? Maybe you’re going into foreclosure and are tired of the headaches and hassles that come with that lengthy and stressful process. The good news is your credit score does not matter when it comes to selling your house.
You can sell your house with bad credit without any added restrictions, but that doesn’t mean you should. It’s important to consider why you are selling, what your situation is after you’ve sold, and to evaluate the benefits and costs of selling your home.
The biggest issue you will run into if you have bad credit and want to sell your home is getting a mortgage to buy a new house. Lenders are more cautious when giving a loan to someone with bad credit. The same goes for getting approved to move into an apartment of your choice. There are also a lot of good reasons to sell your house when you have a low credit score.
Reasons to sell your house when you have bad credit.
The best reason to sell your house if you have bad credit and you’re worried about losing your home is because you can recover some of the money. These recovered funds can be used to help you get back on your feet, pay off bills and work to increase your credit score so you can buy another home in the future. You also have multiple options to choose from.
The first is to find a company that buys houses for cash. They can close quickly; you’ll get an offer fast and be able to move on with your life. This is the quickest option, but you may not always get the most money from house buyers or real estate investors. If you do sell to one of these companies, the biggest bonus is that you’ll avoid going into foreclosure. But what happens if the offers are too low and your bank is placing your home in foreclosure? Do you have any other options? Yes!
If the bank or lender that owns your mortgage is about to foreclose on your home, and you don’t want to sell to a real estate investor, a short sale may be a better option. From the time the bank or mortgage lender starts the process of foreclosing on your home, and until the auction happens, you have a small grace period to list your house on the market. This is called the pre-foreclosure period and it can last up to a few months. This gives you the opportunity to close in a short sale.
A short sale is when you sell your home for less than the mortgage is worth. There are numerous reasons the company who owns your mortgage will allow this, but they do have to approve it so you are taking a gamble. If you're considering a short sale, check to see if selling your home for enough to cover the mortgage will be difficult in the current market, or even at auction. If it is, they may be more inclined to allow this. If they do, it can be a saving grace.
You won’t have to go through the stressful and tedious foreclosure process. You’ll avoid having to watch as your house gets auctioned off to the highest bidder, and you’ll walk away with money in your pocket. Also, short sales do not always use a real estate agent. This saves you money by not paying a commission. The fees associated with short sales normally become the responsibility of the mortgage lender making a short sale a great option, but only if your lender will approve it. But that isn’t the main reason you may want to choose this option.
The most valuable benefit to a short sale is that being foreclosed on is worse for your credit score than a short sale. By not having a foreclosure on your credit report, it may make buying another home in the future easier, especially if home ownership is in your long-term goals.
You can sell your house when you have bad credit without any additional obstacles, but that doesn’t mean you’ll be able to buy a new one as easily. If you do choose to sell, talk to a financial advisor, your lender and also carefully evaluate all options. If the stress is too much and you just want out, contact us for a cash offer and we’ll help to close the deal quickly and painlessly so that you can move on with your life and begin rebuilding your credit without the house and the bank holding you back.
Do you own a home that has been recently condemned, and are you struggling to fix or get rid of it?
Home condemnation occurs more often than you think, and we’ve seen homes in near perfect condition condemned because of one or more housing code violations. Fortunately, you do have the option to either repair your home or sell it, although you may face legal challenges.
Below, we’ll explain everything you need to know about selling a condemned home with or without repair.
What makes a house condemned?
A house is considered condemned if the local government determines it unsuitable for occupancy. Occupants are forced to either move, rehab or relinquish their home to a third party once a home is condemned. The government may also intervene and exercise its right to seize a home and provide fair market compensation to the homeowners.
Here are the reasons a house may be condemned:
- Built with poor materials
- Extensive termite damage causing structural damage
- Hygiene problems exist, including mold
- Utilities have been shut off (water, heat, electric, plumbing)
- Weather or pest damage has caused the house to be unsafe or structurally deficient
- Vacant or boarded up – typically condemned by local government after two months
- Inspector condemns after local officials deem it dilapidated, which means there are no particular hazards
Once a house is condemned, it’s the owner’s responsibility to either repair it, move out or sell. Since you are looking to sell a condemned house, remember: there’s a catch. Condemned homes can only be sold as land and not as an actual home on the market.
Can a condemned house be repaired?
Yes. While condemned homes are considered the last opportunity for occupancy, a homeowner can repair a condemned home and make it livable again. Owners should weigh whether or not the value of the repairs exceeds the value of the home before proceeding. Work with an experienced contractor and appraiser to determine the appropriate next steps.
How can I get the condemned status removed from my home?
To get a home “uncondemned”
- Consult your local building authority and negotiate a rehab or repair agreement.
- Complete the repairs.
- Have the home inspected by the local government authority who will verify the repairs have been completed and the rehabbed home is code compliant and reverse the home’s status.
How much can I get for selling a condemned home?
Depending on the buyer, you can still receive fair compensation for a condemned home if it sits on a desirable lot or location or offers potential upside. Generally, a condemned property is considered less valuable than vacant land because it requires the additional burden of either repairing or demolishing the home. Before rehabbing a condemned home, it’s important to consider whether the price of repair will exceed the appraised value of the home at the time of condemned appraisal.
How can I receive compensation for a condemned home if I can’t sell it?
Through a pro-tanto award. If your house is considered condemned and you can’t sell it, then your local housing authority may decide to seize it. When this happens, the government will provide a pro-tanto award, where you will be compensated based on the appraised value of the property. Otherwise, you have no other options other than repairing the home or forfeiting it entirely.
Can a buyer get a mortgage to buy a condemned house?
A buyer can't get a mortgage for a condemned home – they can only borrow money from "hard money lenders," which don’t have to answer to Securities and Exchange Commission and only to the Federal Reserve Board. To purchase a condemned property, the buyer has to work directly with you, the owner. Unfortunately, a buyer’s only option for financing will have to come out-of-pocket or using rehab loans. Buyers need to keep in mind the cost of repairs in a condemned home purchase, as well as any existing liens on the home that will need to be paid off.
If you own a condemned home and are looking to sell fast for cash, click here to contact us. We’ll make you an offer and take that stressful element out of your life.
Eastern District of Virginia Strikes Down Trademarks For“We Buy Houses” and “Webuyhouses.com”
In a thorough and well-reasoned decision, U.S. District Judge T.S. Ellis, III of the Eastern District of Virginia, concluded that the trademarks “We Buy Houses” and “Webuyhouses.com” are generic and should be canceled. The court found that the phrase “we buy houses” has been used since in the real industry since as early 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.”
Cancellation of the trademarks because they are generic was “logical” according to Judge Ellis because “allowing one member [of the real estate industry] to trademark 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.’” Having concluded that the trademarks “We Buy Houses” and “Webuyhouses.com” were generic and should be canceled, Judge Ellis dismissed WBH Marketing’s claim that Express Homebuyers infringed on the trademarks and threw out WBH’s multi-million dollar damages claim.
Plaintiff, a Virginia limited liability company engaged in the business of buying and selling houses, brings this action against defendant, a Texas corporation engaged in the same business, seeking cancellation of defendant's two trademarks, "We Buy Houses" and "Webuyhouses.com" ("the Marks"), on the grounds that both marks are generic and undeserving of trademark protection. In response, defendant has counter-claimed that plaintiff has infringed on the Marks and falsely designated the origin of plaintiff's services. Both parties have moved for summary judgment on plaintiff's claim and defendant's counterclaims. This memorandum opinion addresses whether the Marks are generic, and therefore ineligible for trademark protection.1 Because there are no disputed issues of material fact with respect to this question, plaintiffs motion for summary judgment must be granted in part and defendant's cross-motion for summary judgment must be denied in part.
1 The parties' cross-motions for summary judgment and plaintiffs pending motion to dismiss address defendant's remaining counterclaims, which do not implicate the question whether the Marks are generic. Those will be addressed and resolved by a separate order.
Given that summary judgment is appropriate only where there are no genuine disputes of material fact, Fed. R. Civ. P. 56, the first step in the analysis is to identify the record facts as to which no genuine dispute exists. In this regard, Local Rule 56(B) directs a movant for summary judgment to include in its submission a separately captioned section listing in numbered-paragraph form all material facts as to which the movant contends no genuine dispute exists. The nonmovant must then respond to each numbered paragraph, either admitting or contesting the putative undisputed fact and citing admissible record evidence to establish a genuine dispute of material fact. The nonmovant's failure to respond to a fact listed by the movant constitutes an admission that the fact is undisputed. R. 16(B) Scheduling Order ,r 13. Where, as here, both parties have moved for summary judgment, each party submitted its own statement of material facts as to which that party contends there is no genuine dispute. In this case, both parties have complied with the order and local rule. Accordingly, the facts recited here are derived from the parties' lists of material facts and their respective responses.
- Plaintiff Express Homebuyers (EHB) is a limited liability company organized under Virginia law with its principal place of business in Springfield, VA. EHB has been in the house-buying industry since 2003, operating chiefly in the Washington, C. metropolitan area. Lawrence Bradford Chandler is EHB's CEO.
- Defendant We Buy Houses Inc. (WBH) is a Texas corporation with its principal place of business in Southlake, TX. WBH provides educational and instructional materials to home buyers and sellers and conducts its operations nationwide. Jeremy Brandt is a citizen of Texas and is WBH's founder and
- WBH owns the two registered marks at issue: "We Buy Houses" and "Webuyhouses.com."
- On July 11, 2001, Michael Payette filed an intent-to-use Application 78,073,479 (the '479 Application) with the U.S. Patent and Trademark Office (PTO) for the mark "WE BUY HOUSES" for real estate printed materials.
- In February 2003, while Payette's '479 Application was still pending, Webuyhouses.com, Corp., owned by Howard Gordon, filed Application No. 76,491,672 (the '672 Application) to register the mark "WEBUYHOUSES.COM."
- On May 26, 2004, Payette sold the '479 Application for the WE BUY HOUSES mark to Webuyhouses.com, Corp. The transaction was documented in a sale and assignment agreement, which was recorded with the PTO on June 14, 2004. On December 2, 2005, Webuyhouses.com, filed a Statement of Use for the '479 Application for WE BUY HOUSES, alleging first use as early as October 21, 2005.
- In March 2006, com, Corp. entered a license agreement with Martin Price, whereby Price operated, advertised, and marketed "webuyhouses.com" and "we buy houses" as Gordon's business partner.
- The '479 Application for WE BUY HOUSES became S. Registration No. 3,149,336 (the '336 Registration), and the '672 Application for WEBUYHOUSES.COM became U.S. Registration No. 3,235,523 (the '523 Registration) on September 26, 2006 and May 1, 2007, respectively.
- Gordon acquired the Marks to prevent others from barring his companies' use of the phrase "we buy houses." Price had the same view. Between 1997 and November 2012, neither Gordon nor Price enforced the Marks even though both were aware of the widespread use of the phrase "we buy houses" in the real estate industry. Gordon and Price actively encouraged other house-buying companies-many of which had names containing the phrase "We Buy Houses"-to use the phrase "we buy houses," believing that increased use of the phrase would create more traffic to the COM website. CD, Ex. 17, 79; Price Dep. at 169, 174-75, 187-88; Gordon Dep. at 253.
- Between 1997 and November 2012, Gordon and Price advertised and marketed the Marks in a non-source-identifying manner, saying that "we buy houses" "doesn't signify who you are. It signifies what you do." Price Dep. at 18:5-8; see also Gordon Dep. at 218-19 ("I call [WE BUY HOUSES] 'the three magic words,' which is why we patented and then trademarked them, because they are recognized by everybody as what we "). Price understood that the phrase "We Buy Houses" was being used on 10-50 million websites, and he leveraged the widespread use of "we buy houses" to make money by selling leads from the WEBUYHOUSES.COM website to house-buyers. Price marketed the website WEBUYHOUSES.COM to other house-buyers whose companies had "We Buy Houses" in their name or whose companies were otherwise in the house-buying business.
- In November 2012, com, Corp. assigned the '336 Registration and the '523 Registration to XS, a company owned by Brandt that did business in the house buying industry. X5 was aware at that time that other house-buying companies were using the phrase "we buy houses."
- XS subsequently assigned the rights in both Marks to We Buy Houses , effective September 10, 2013.
- The prior and current owners of the WBH Marks have used "we buy houses" to indicate the nature or class of services offered, namely that they buy houses from consumers looking to sell their homes. Prior to purchasing the WBH mark in 2012, Brandt's previous companies XS and Cash Offer Corporation (COC) used the phrase "we buy houses" to indicate the nature or class of service they offered.
- Real estate investors who buy houses are commonly referred to in the industry as "we buy houses companies," and consumers share that understanding due to the ubiquity of "we buy houses" road signs. EHB's competitors also use the "we buy houses" phrase to signal to customers that they are involved in the home-buying
- Real estate professionals have used "we buy houses" in newspaper advertising since 1898. CD, Ex. 124; Appx. 3; Arnold Deel. 2 A May 2016 search on www.newspapers.com of"WE BUY HOUSES" produces 52,295,853 results. CD Ex.
- A Google search of"we buy houses" yields hundreds of thousands of pages of results.3 Numerous real estate professionals use "we buy houses" in online marketing and advertising. Appx. 1. Numerous Trademark applications and registrations include the phrase "We Buy Houses," and several books include the phrase in the title or otherwise to discuss the house-buying business. CD Ex. 18; Arnold Deel.
- EBH uses the phrase "we buy houses" in marketing and advertising, but it has never used the phrase "webuyhouses.com." Between 2003 and 2016, EHB received no complaints that its use of"we buy houses" was inappropriate, infringed on intellectual property, or otherwise confused customers.
- WBH directed real estate investors to remove the words "we buy houses" from Facebook, websites, blogs, Twitter, YouTube, and other marketing. CD, Ex. 122. WBH requested that YouTube remove EHB's marketing and advertising videos featuring the words "we buy houses." WBH told real estate investors that by using "we buy houses," they were attempting to confuse consumers and imitate WBH. WBH told real estate investors that use of "we buy houses" in marketing content was trademark infringement. Brandt told WBH executive Dev Hom, "That's how we roll. Facebook page-GONE." Id. Ex Hom further stated that WBH needed to "scare the sh*t" out of investors using "we buy houses" and that WBH should "GET THOSE MOTHER F*****S."
- Real estate investors informed WBH of the time and money it would take to remove "we buy houses" from their marketing, and that WBH's actions disrupted.
2 WBH argues that this evidence from newspapers is unauthenticated and hence not properly admissible here. This argument fails. Rule 902(b)(6), Fed. R. Evid., provides that such newspaper evidence is self-authenticating and therefore admissible. See Bailey v. Black Entm't Televisions, 2010 WL 1780403, at *3 (E.D. Va. May 3, 2010). A number of other exhibits supporting this fact were authenticated by Robert Arnold. See Ex. 18, 19, and 124. Accordingly, this evidence is admissible and undisputed.
3 WBH argues that evidence from the Internet, including Google search results and other evidence relating to the use of"we buy houses" is unauthenticated and inadmissible. This argument also fails as Rule 90l(b)(4), Fed. R. Evid., pennits authentication by circumstantial evidence including "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." And courts have recognized that this rule allows for authentication of the contents of websites. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007). In addition, a number of documents in the record are taken directly from the PTO's website, which may be judicially noticed. Advantek Marketing, Inc. v. Shanghai Walk-Long Tools Co., 2016 WL 9178079, at
*1 (C.D. Cal. Nov. 3, 2016); see also Genetic Technologies ltd. v. Bristol-Myers Squibb Co., 72 F. Supp. 3d 521,526 (D. Del.2014) ("A court may also take judicial notice of the prosecution histories, which are 'public records."') (citing Hockerson-Halberstadt, Inc. v. Avia Grp. Int 'I, Inc., 222 F.3d 951, 957 (Fed. Cir. 2000)).
Finally, with respect to the hearsay objection to the Internet evidence, WBH's argument is misplaced. The Internet evidence is not being offered for the truth of the matter asserted, namely that the companies advertising home-buying services in fact buy houses. Rather, the evidence is submitted to establish that many third parties currently use and have used the "we buy houses" phrase for decades to describe their house-buying services, not to identify a source of the services. See SMS Audio LLC v. Belson, 2017 WL 1533971, at *4 (S.D Fla. Mar. 20, 2017) ("a webpage, introduced for the purpose of showing the infonnation available on the Internet on a particular day, is not hearsay."); Lorraine, 241 F.R.D.at 566 ("When analyzing the admissibility of electronically generated evidence, courts also have held that statements contained within such evidence fall outside the hearsay definition if offered for a purpose other than their substantive truth.").
The summary judgment standard, which the parties do not dispute, is too well-settled to merit extended discussion. As Rule 56, Fed. R. Civ. P., makes clear, summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." And it is settled that "the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). On the other hand, if the record reflects a genuine factual dispute, summary judgment is precluded. A genuine factual dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But importantly, the party opposing summary judgment may not rest upon mere allegations and denials, and must instead "set forth specific facts showing that there is a genuine issue for trial." Id. And further, these specific facts must be shown to exist in the record in legally admissible form. Finally, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id at 252.
The Lanham Act permits a party to file a petition to cancel the registration of a mark at any time if, inter a/ia, ''the registered mark becomes the generic name for the goods or services, or a portion thereof, for which it is registered." 15 U.S.C. § 1064. The Act further provides that a court may order the cancellation of the registration of a mark on the basis of such a petition. Id. § 1119. Here, plaintiff seeks invalidation of defendant's Marks because the Marks are or have become generic.
The Fourth Circuit has explained that a mark "cannot acquire trademark protections unless the mark is distinctive, that is, unless it serves the traditional functions of 'distinguishing the applicant's goods from those of others' and identifying the source of the goods." Retail Servs., Inc. v. Freebies Publishing, 364 F.3d 535,538 (4th Cir. 2004) (quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992)). As the Fourth Circuit further noted, the "antithesis" of a distinctive mark is "a 'generic' mark which merely employs 'the common name of a product or service ...."' Id. (quoting Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455,464 (4th Cir.1996)). A mark becomes generic where "the primary significance of the mark [is] its indication of the nature or class of the product or service, rather than [its] indication of source." Glover v. Ampak, Inc., 74 F.3d 57, 59 (4th Cir. 1996). Generic marks cannot be protected as trademarks because generic marks do not signify the source of the services provided and do not distinguish the particular product from other similar products in the market. Retail Servs., 364 F.3d at 538 (citing Two Pesos, 505 U.S. at 768). The purpose behind requiring a trademark to be distinctive is that "if a business were permitted to appropriate a generic word as its trademark, it would be 'difficult for competitors to market their own brands of the same product."' Id. (citing Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604,609 (7th Cir.1986)).
Where, as here, a mark has been registered by the PTO, the fact of registration is prima facie evidence that the registered mark is not generic. See 15 U.S.C. § l l 15(a). As the Fourth Circuit has explained, "[b]ecause the PTO may not register a generic mark, the fact that a mark is registered is strong evidence that the mark satisfies the statutory requirements for the distinctiveness necessary for trademark protection." Retail Servs., 364 F.3d at 542. This presumption of validity "require[s] the party challenging the mark to produce sufficient evidence to establish that the mark is generic by a preponderance of the evidence." Id. (citing Glover, 74 F.3d at 59). If the party challenging the registration presents sufficient evidence that the marks are generic, then the presumption of validity of the trademark is rebutted. Id. In some circumstances, the existence of a certificate of registration may be sufficient to create a question of material fact as to whether a mark is generic. Importantly, however, "the certificate of registration alone does not immunize" a registration from summary judgment, and sufficient evidence that the mark is generic will justify the award of summary judgment in favor of a party seeking cancellation of a mark. Id. at 544.
To rebut the presumption that WBH's Marks are not generic, EHB must offer proof that "the primary significance of the mark [is] its indication of the nature or class of the product or service, rather than an indication of source." Glover, 74 F.3d at 59. Furthermore, the evidence must demonstrate this generic understanding of the mark from the viewpoint of the "relevant public." Retail Servs., 364 F.3d at 544. The Fourth Circuit has cited a number of sources of evidence in deciding whether the presumption of validity is rebutted, including '"purchaser testimony, consumer surveys, listings and dictionaries, trade journals, newspapers, and other publications."' Id. (quoting Glover, 74 F.3d at 59). Other sources include "evidence of 'generic use by competitors, generic use of the term by the mark's owners, and use of the term by third parties in trademark registrations."' Id. (quoting Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397,406 (6th Cir. 2002)).
With these principles in mind, analysis now turns to the Marks in question-"we buy houses" and "webuyhouses.com." The parties do not dispute that the relevant consuming public in this case is home-selling consumers and house-buying professionals or investors. Therefore, the question is whether the phrase "We Buy Houses" is generic or distinctive from the viewpoint of this relevant public.
The use of the Marks on other websites and in newspapers by third parties to describe the services offered and not the source of the services is compelling evidence that the phrase "we buy houses" is generic.4 See Retail Servs., Inc. v. Freebies Publ'g, 364 F.3d 535, 545 (considering the use of the term at issue by other websites on the Internet, including the descriptions offered for those sites). Here, there is substantial evidence that the phrase "we buy houses" is used extensively on the Internet and in newspapers to connote a class of services provided, rather than a specific source of those services. A search of newspapers.com, which aggregates uses of various phrases in newspapers and newspaper advertisements yields more than 55 million matches for the phrase "we buy houses," showing that the phrase is used extensively by third parties as a descriptor of services, not as an indicator of the source of the services. CD, Ex. 19. And a Google search of"we buy houses" yields hundreds of thousands of websites using the phrase, which shows, again, that third parties extensively use the phrase to market real estate services and not to identify the source of the services. Although some number of these results use the phrase in connection with WBH's business, it is clear that the phrase is used extensively by a variety of other businesses to describe the class of services that they provide and not to identify the source of the services.
Significantly, the Fourth Circuit has held in similar cases that such extensive third-party use of a phrase or term is persuasive evidence that a phrase or word is generic, rather than distinctive. See Retail Servs., 354 F.3d at 546 (holding that online search evidence of pervasive third-party use of the term ''freebies" was persuasive evidence that the term is generic); Am. Online, Inc. v. AT & T Corp., 243 F.3d 812, 818-19 (4th Cir. 2001) (evidence of extensive and uninterrupted use of the phrase "You Have Mail" supported finding that the phrase is generic). This undisputed record evidence of widespread, generic use of the Marks is compelling and convincing evidence that the phrase "we buy houses" is generic.
Defendant argues that in spite of the substantial evidence that the relevant consuming public uses the phrase generically, the Marks should be protected because they have become distinctive through secondary meaning. To acquire secondary meaning, "in the minds of the public, the primary significance" of the otherwise generic term must be "to identify the source of the product rather than the product itself." Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 464 (4th Cir. 1996). But the record in this case is devoid of any evidence to support this argument. Defendant merely points to the uncorroborated assertion by its CEO, Brandt, that "[w]hen people hear the phrase 'we buy houses,' they think of our company."5 Aff. Brandt 118. Such sparse and self-serving evidence is insufficient to create a genuine dispute concerning whether the Marks have acquired secondary meaning in the face of plaintiffs overwhelming and undisputed evidence that third parties use and understand the Marks generically, i.e. as describing a service and not a source. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,252 (1986) ("The mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient."). See also Retail Servs., Inc., 364 F.3d at 547 ("Evidence of an acquired secondary meaning, however, has no relevance unless the mark in question has been found not to be generic.").
The Fourth Circuit has also made clear that "evidence of the owner's generic use, in particular, 'is strong evidence of genericness."' Retail Servs., Inc., 364 F.3d at 545 (quoting 2 McCarthy at§ 12.13). Here, the undisputed evidence shows that the previous owners of the Marks used "we buy houses" as a generic description of the services they offered, not to identify the source of the services. For example, Gordon stated that he acquired the Marks so others could not prevent him and his companies from using the "we buy houses" phrase to describe their services. Gordon Dep. 136-40. Similarly, Price stated that he "didn't care if other people were using [the Marks] or not," Price Dep. 139:10-11, and explained that he "could have cared less about the trademark[.]" Id. at 212:13-14. Between 1997 and November 2012, Price advertised and marketed the "we buy houses" Marks in a non-source identifying manner, using the Marks to "signif[y] what you do." Id. at 168:5-8 (Price testified that "[We Buy Houses] doesn't signify who you are. It signifies what you do."). See also id. at 167, 180 (advertising and marketing WEBUYHOUSES.COM as the "most powerful name in the house-buying business"). Gordon described the Marks in the same manner, stating that "we buy houses" was recognized as an indication of "what we do" and not as the source of the house-buying services provided. Gordon Dep. at 218-19. In other words, the prior owners of the Marks used "we buy houses" to refer to the real estate purchasing services that they and their licensees provided. The Fourth Circuit has made clear that the mark owner's own use of a trademarked phrase to refer to the nature or class of services to which the mark applies is strong evidence that the Marks are generic. Retail Servs., Inc., 364 F.3d at 545; Am. Online, Inc., 243 F.3d at 819-20.
Finally, the record contains evidence from competitors on their generic use of the phrase "we buy houses." Nor is there doubt that this is relevant evidence. See Retail Servs., Inc., 364 F.3d at 546 (considering declarations from competitors on the use of the mark at issue). The record discloses that numerous real estate professionals use "we buy houses" in online marketing and advertising to describe the house-buying service they provide and not to the source of the service. Appx. 1. ("We buy houses in ANY CONDITION! We pay CASH and you will not pay any commissions, agents, or fees."). Chandler testified that he uses the phrase "we buy houses" to refer to the home-buying services that EHB provides-that is, to "tell the consumer what it is that [EHB] do[es]." EHB Dep. 227:3-4. And there is also significant evidence that the "we buy houses" label identifies "real estate investors who buy houses" as a category of a type of service-provider and not to identify any particular provider as a source of those services. See id. at 201:1-8. ("[I]n this industry ... real estate investors are often ... referred to as 'we buy houses' companies.... So the market thinks that anyone who invests in houses is, quote, one of those 'we buy houses' companies."). See also Appx. I; Exs. 27, 29-39, 41-43, 46-48, 50, 75, 88-89, 123. This use of the phrase "we buy houses" by competitors and consumers to refer to a type of service provided, not to a source of the service, further confirms that the phrase is generic.
In sum, this undisputed record evidence more than rebuts the presumption stemming from the PTO's determination that the Marks are not generic. See Retail Servs., Inc. 364 F.3d at 546 ("Such one-sided evidence necessarily rebuts the presumption of non-genericness."). The overwhelming and unrefuted evidence in this case shows that there is no genuine dispute of material fact as to the determination that the Marks at issue are generic, and accordingly, summary judgment cancelling the marks is appropriate. This result is logical; when asked what services they provide, EHB, WBH, and other competitors would naturally answer "we buy houses." And allowing one member of the industry to trademark 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." Those phrases are not distinctive identifiers of a source of goods or services. They merely describe the kind of services or goods provided by a business, and accordingly those phrases cannot be trademarked. The same is true of"we buy houses."
Seeking to avoid this conclusion, WBH argues that even if the phrase "we buy houses" is generic, defendants are not using the phrase generically with respect to their business, which Brandt describes as "provid[ing] educational and instructional materials to home buyers and sellers." Brandt Deel. ,r 13. In essence, defendants argue that the fact that they connect their network of real estate investors to sellers to purchase homes and do not themselves buy homes transforms the use of"We Buy Houses" from generic to descriptive.
The Fourth Circuit considered and rejected a similar argument in Retail Services. There, the defendants contended that their use of the term "freebies" was descriptive because they provided "information about no-cost or low cost promotional offers" as opposed to the generic use of the term which connoted the giving away of products for free. Retail Servs., at 547. The Fourth Circuit concluded that this "razor-thin distinction" was "not significant" because "[e]ven though defendants do not directly distribute free products or 'freebies,' their business nonetheless revolves around 'freebies' in the generic sense of the word." Id. This is so, according to the Fourth Circuit, because defendants' business involved connecting consumers with free offers. Id. Similarly here, although defendant may not be directly buying houses, defendant's business nonetheless "revolves around" the use of the "we buy houses" phrase in a generic sense, namely connecting home sellers to home buyers.6
In sum, the undisputed record confirms that the Marks at issue describe defendant's services but do not identify the source of the services. As such, the Marks are generic.
4 WBH argues that this evidence is problematic because EHB has unclean hands. Specifically, WBH argues that because EHB has encouraged residential real estate investors to use the term in their advertising, it has caused this third-party use. But much of the evidence EHB submitted occurred far before EHB began its advertising campaign. Indeed, newspaper articles referring to "we buy houses" span as far back as 1898.
5 Elsewhere in the record, Brandt also asserts, without corroboration, that "Multiple times a week potential home sellers have contacted WBH and expressed confusion because they had been in contact or had a negative experience with another company (possibly EHB) that called itself'We Buy Houses' and believed that this company was WBH. WBH's licensees have also reported similar confusion ...."This statement need not be considered because "[e)vidence establishing a likelihood of confusion simply 'do[es] not bear upon the question of whether [a] trademark ... [is] generic."' Retail Servs., Inc. v. Freebies Publ'g, 364 F.3d 535,547 (4th Cir. 2004) (quoting Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 1 5 (4th Cir.2000).
Defendant also argues that the addition of".com" to one of its Marks gives it Internet-related distinctiveness. However, the mere addition of".com" to an otherwise generic mark does not give it source-signifying distinctiveness, especially where, as here, the mark is used in the website addresses of other retailers that provide the same service as the mark owner. See In re 1800Mattresses.com, 586 F.3d 1359, 1363-64 (Fed. Cir. 2009); In re Hotels.com, 573 F.3d 1300, 1306 (Fed. Cir. 2009). Here, the record contains substantial evidence ofother house buying companies that have website addresses similar to webuyhouses.com." Br. in Supp. of Pl. Countercl. Ders Mot. For Summ. J., Appx. 1.
EHB also seeks summary judgment with respect to WBH's counterclaims. This memorandum opinion addresses only the counterclaims that implicate the validity of the Marks and turn on the determination that the Marks are generic. Specifically, WBH has counterclaimed that EHB is liable for trademark infringement, in violation of the Lanham Act, 15 U.S.C. § 1114(1), and Virginia common law, and that EHB is liable for false designation of origin, in violation of the Lanham Act, 15 U.S.C. § 1125(a)(l)(A).
Under the Lanham Act, both trademark infringement and false designation of origin claims require a trademark holder to prove (1) that it possesses a valid, protectable mark; (2) that the opposing party used the mark; (3) that the opposing party's use of the mark occurred in commerce; (4) that the opposing party used the mark in connection with the sale, offering for sale, distribution, or advertising of goods or services; and (5) that the opposing party used the mark in a manner likely to confuse consumers. Lampare/lo v. Falwell, 420 F.3d 309,313 (4th Cir. 2005); Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 930 (4th Cir. 1995) ("[C]omplainant must demonstrate that it has a valid, protectible trademark and that the defendant's use of a colorable imitation of the trademark is likely to cause confusion among consumers;''). The same test is applied under Virginia common law. Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 162 (4th Cir. 2014).
Here, defendant's Marks are generic and thus neither valid nor protectable. 15 U.S.C. § 1064(3). Therefore, defendant's counterclaims based on trademark infringement and false origin fail as a matter of law, and summary judgment should be granted in favor of plaintiff on Counts I, II, and IV of defendant's First Amended Counterclaims.
6 EHB also argues that the Marks at issue in this case were abandoned by WBH or otherwise improperly assigned. Because the Marks are generic, that issue need not be addressed or decided here.
For the reasons discussed above, plaintiffs motion for summary judgment must be granted in part, and defendant's motion for summary judgment must be denied in part.
Specifically, plaintiff's motion for summary judgment must be granted as to Counts I and II of the First Amended Complaint, which seek a judgment declaring that the Marks must be canceled because they are generic. Defendant's motion for summary judgment must be denied insofar as it seeks dismissal of those Counts. Plaintiff's motion for summary judgment must also be granted as to Counts I, II and IV of defendant's First Amended Counterclaims, as those Counts depend on the validity of the Marks. Defendant's motion for summary judgment must be denied insofar as it seeks judgment in its favor on Counts I, II and IV.
An appropriate order will issue.
T.S. Ellis, III
United States District Judge
Can You Trust
You’re driving down the road and you get lost in overwhelming thoughts about your never-ending responsibilities. The devastating reality of drowning in bills and debt is sinking in. You realize how quickly your available cash is dwindling when a sign that reads “We Buy Houses For Cash” catches your eye. This peaks your curiosity, could I really sell my house for almost immediate cash? You’ve thought about how to sell your house in the past but the process seems so stressful. You think about calling but it seems almost too good to be true, what's the catch?
Seeing flyers on telephone poles or signs that read in all bold “we buy houses” can be a bit off putting at a first glance but believe-it-or-not these companies are a legitimate part of the real estate market. The reality is, We Buy Houses companies aren’t for everyone, but can be extremely useful for those who are stuck in a predicament like the one that was just illustrated.
These companies buy houses at slightly under market value, make necessary repairs, and sell the property for a profit. If selling the home on the market isn’t an option, this can be a great way for distressed sellers to relieve themselves from the burden of having to sell the home.
So how exactly do these companies work?
Buyers from the We Buy Houses companies seek out distressed sellers who may be interested in selling their house below market value in exchange for an expedited and hassle-free selling process. When a seller indicates interest in selling their home for cash, they’ll work with the company to arrange a time for the buyer to see the property. The buyer will estimate the value of the home and create a no-obligation offer for cash. If the seller agrees to the offer, the buyer will then prepare a buyer’s contract without having to involve real estate brokers or commissions.
What type of homeowners are they looking for?
There are a variety of reasons someone might choose to sell to a We Buy Houses company; in most cases the seller is unable to sell the home on the market and is looking to close quickly. If a loved one unexpectedly passes away, someone might quickly inherit a home but not have the time or energy to make repairs and put it on the market. If a home has been damaged, in order to avoid massive repairs, a homeowner might choose to sell for cash.
Divorced couples needing to relocate quickly can benefit from selling the shared home through a We Buy Houses company. An unfortunate financial situation or unexpected bills may prompt someone to sell their home in order to get cash fast and make ends meet. Regardless of the situation, most sellers are feeling overwhelmed and stressed, which is why these companies help take that weight off of their shoulders by simplifying the process.
But how can they buy my home for cash?
House Buying companies are in the business of flipping homes, which means that they should have done enough business previously to have enough cash in their account to purchase the home. As with any industry, there will always be scams and people that are looking to take advantage of you. If you’re looking to sell your house fast for cash, it’s important to know which companies are looking out for your best interest and operating ethically. Trustworthy companies use cash that they already have sitting in their account to buy a seller’s home. This cash is often the proceeds from previous properties they’ve flipped.
The company may also have received a Hard Money Loan, which is a loan based on an asset. With Hard Money Loans, the loan is based on a piece of property being used as collateral rather than other factors like a credit score. The cash that the company uses to buy homes may also be from Angel Investors who have chosen to invest in the company. An Angel Investor will invest in a company that they deem to be profitable; the company continually has satisfied customers and is bringing in consistent business.
We Buy Houses Scams
Smart people get tricked into We Buy Houses scams all the time, which is why it’s important to do research beforehand and know which questions to ask. When you first see a “We Buy Houses” or “I Buy Houses” sign, you should look to see if there is a company name on the sign. If the sign only has a phone number, chances are it’s a shady practice. Many of these numbers are actually routed through Google Voice or other services that make them untraceable.
If they do have a company name, you should be able to easily access client reviews and testimonials when you look them up online. If a business has nothing to hide, you should be able to find information about the business owner and their business with previous clients.
Are you still not sure if you’ll be able to tell a legitimate business from a sketchy one? In real estate, social proof goes a long way. If a company has been doing deals for a long period of time, you’ll be able to find reviews online. Most reputable We Buy Houses companies will have been featured in various media outlets.
The company’s website should have client reviews and testimonials on their websites, although you have to remember that these reviews are sometimes bias as they are chosen by the company. If the business pops up on Google search with a valid address, there should also be numerous reviews of the company through Google. Looking at a company’s Facebook page is a great way to gage how much business they’ve done, and whether or not most business interactions have been positive. Social media sites like Facebook, Twitter, and LinkedIn are great for getting honest reactions and reviews from customers.
If you’re unable to find any information about a company online, it’s possible that they’re running a scam that is illegal and untraceable. It’s simple to check through the Better Business Bureau and see if the company is an accredited business. The Better Business Bureau also features reviews and feedback. If you can’t easily access a website to learn about the company and the company is not a Better Business Bureau accredited business, it’s best to steer clear.
We Buy Houses Companies Aren't For Every Seller
When a seller chooses to work with a “We Buy Houses” company, it’s most often for one of two reasons: because they are in a financial position where they want to get cash fast or because they don’t want to take on the stress and burden of selling a house. That being said, We Buy Houses companies are not for every seller. It’s important to first evaluate what your needs are when it comes to selling a home before making the decision to sell on the market or sell to a company that buys houses.
Not all We Buy Houses companies are the same, many will operate in a very different way than others and, unfortunately, some will try to take advantage of sellers. That being said, make sure to do the necessary research beforehand and trust your gut! If anything ever feels off, make sure to get clarification.
Contracts should never be signed if you’re unclear on what they mean. Unfortunately, many of these companies have sneaky ways of getting out of a contract. These contingencies include: needing approval from a lender, a specified number of days for a buyer to get financing, an appraisal for a certain value, a cost of repair contingency, and requiring a home inspection.
Just because someone has had a negative experience with a “We Buy Houses” company doesn't mean that all of them have that same reputation. Many companies have an office, a qualified team, and will work with you to get the house sold in just days, all elements that lead to a trust worthy company.
Remember the beginning scenario where you were driving down the road feeling stressed and overwhelmed? You were questioning whether selling your house could ever be an option, and how to get started. Now, picture feeling happy and confident, knowing that you made the right decision to sell your house and that you worked with a legitimate house buying company.
Should you choose to work with a We Buy Houses company, you now have the tools and resources to find a reliable company to sell your home quickly and give you the money that you deserve. You have the satisfaction of knowing that it is possible to finally feel financially relieved by selling your home for cash. You can sell your house, We Buy Houses companies are legitimate, and you could easily have cash in your pocket in just days!