I have a friend who has been a personal injury lawyer for decades. He’s a solo practitioner with enough cases to keep him comfortably in business. He was my lawyer after I was involved in a car accident and he did a wonderful job settling my case. He has a great reputation and gets the majority of his business through word-of-mouth. He has a website and occasionally writes a blog. He recently asked me why he should be on Twitter if he doesn’t need it to drum up business.
Image via Wikipedia
I think my friend doesn’t see any value in sitting on Twitter all day reading and responding to others’ tweets. I think he’s right on that point, but I don’t think he sees some of the other benefits of having a Twitter account. I’ve been pondering his question for a few weeks and I’ve come up with the top three reasons why a lawyer in his position would want to have a Twitter presence.
Promote Your Blog – I love that my friend writes a blog, but if no one knows when he has something new posted, who is going to read it? I have a lawyer friend who mostly uses his Twitter account to announce when he has posted a new blog. I love when he writes, but he doesn’t publish on a set schedule. I appreciate the notice when he has something new for us to read.
Stay On The Radar – By using a Twitter account, a solo practitioner remind others that they exist in a non-intrusive way. It also makes it easier for people who promote you within the Twitterverse.  For example, I recently had a friend ask me for a recommendation for a real estate lawyer in Arizona. I didn’t know any lawyers who practice in this area, so I put the question out on Twitter. (Note – I only put the question out on Twitter.) I received two recommendations within 24 hours. I appreciated the response that provided a name, a Twitter handle, and a website more than the response that just gave me a name. It gives people a way to get to know you before they initiate a conversation with you. If you saw a tweet where someone mentioned you, you could post a thank-you tweet and continue to build goodwill for your firm.
Stay Abreast of Legal News – I get multiple legal magazines every month and I don’t have time to flip through them all. Instead, I follow various entities on Twitter who post links to articles and blogs on the latest legal news. It’s a more efficient way to know what’s going on in the legal world.
When it comes to social media like Facebook and Twitter, it’s important for lawyers (and any professional) to look at it as a tool, and evaluate it whether it can assist them in their business. With Twitter, it’s about having public conversations in an online community and people can engage where they are comfortable. In the big picture, I think it’s better to be partially involved and engage a little bit, than not to be involved at all.
Disclaimer: I am not a lawyer. I am a law student. In accordance with ABA policy, this blog should not be viewed as legal advice. It is simply my experiences, opinions, and stuff I looked up on the internet.
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Daniel Rothamel, a.k.a. the “Real Estate Zebra,†is a real estate agent and blogger in Virginia. He’s being sued by The Lones Group Inc. in Bellingham, Washington, a company that helps real estate agents market themselves. The Lones Group writes the “Zebra Report†and “Zebra Blog.†Their suit claims that Rothamel is infringing on their trademark and their zebra theme trade dress on their website. In its complaint, The Lones Group is seeking over $75,000 in compensatory and punitive damages, plus attorneys’ fees for violations of Washington State law, federal law, and common law.
Under the Lanham Act (federal trademark law), a trademark or service mark includes any word, name, or symbol used in commerce to identify and distinguish the source of goods and services.  Trademark rights allow a company to prevent others from using their mark in commerce because it will create consumer confusion.  When a company registers their mark with the U.S. Patent and Trademark Office (USPTO), they can exclude anyone in the country from using their mark. The first person to register the mark, regardless of when they started using it, gets national protection for the use of their mark. If someone else was using the same mark before they registered their mark with the USPTO, that company can keep using the mark, but only within the area where it was using it when the other company registered the mark. Without registration, a company can only exclude others from using their mark where they have used their mark in commerce.
According to the complaint, The Lones Group has been publishing its newsletter, “The Zebra Report†since 2005 and has been writing its blog, “The Zebra Blog†since November 2007. I looked up Rothamel’s domain information and it appears that he’s had his blog since October 2006. A quick word search on the USPTO website showed that there are no registered trademarks for “Lones Group,†“Zebra Report,†“Zebra Blog,†or “Real Estate Zebra.â€Â If there are no registered trademarks or trade dresses, The Lones Group can’t claim automatic national protection for their marks.
It appears that The Lones Group is trying to establish priority of use of their mark of “Zebra Report†and the use of zebras on their website to claim that they can stop Rothamel from having his blog. Rothamel has priority over the use of “zebra†in connection with a blog and the real estate industry.
I see two big issues with this case. First, I’d argue that The Lones Group and Rothamel have products that are too different for any consumer to be confused.  Rothamel is a real estate agent and The Lones Group helps real estate agents with marketing. There’s no likelihood of confusion. Based on what I’ve read from the real estate industry, there has been no confusion. Second, the marks themselves don’t look that similar. The Lones Group’s zebras are real pictures of zebras and Rothamel’s zebra is a cartoonish drawing of only a portion of a zebra.
The Lones Group has filed the lawsuit against Rothamel and the agency he works for, Strong Team Realtors. The Lones Group is probably going after the realty company because they have more money than Rothamel, but I think their case is weak. Unless Strong Team Realtors is paying for his blog, I don’t think they can be implicated in this case.
Additionally, if this case goes to trial, The Lones Group may have the burden of proving that Rothamel’s blog counts as commerce. There must be a bona fide offer for a sale to qualify as using a mark in commerce. Rothamel writes about being a real estate agent, but I think there’s an argument that the blog itself is not “in commerce.â€Â Rothamel mentions his employer but it doesn’t look like his promoting himself as a real estate agent. I have not read every blog post on his site, so I could be wrong. He does not seem to be selling any advertisements on his blog either. Having a website, by itself, is not sufficient evidence to be in commerce. If Rothamel’s use of “zebra†is not in commerce, it can’t be a violation of the Lanham Act.
I also think The Lones Group has a jurisdiction issue in regards to the claims under Washington state law. The jurisdiction rules require you to have sufficient contacts with a state in order to be sued there.  Rothamel lives in Virginia and is a licensed realtor in Virginia. The fact that his website is accessible to people in Washington, with nothing more, should not be sufficient contact with the state for Rothamel to be sued there under the state law.
Here’s what I think is really going on. The URL for The Lones Group’s “Zebra Blog†is http://thelonesgroup.wordpress.com. I think they want Rothamel’s domain (http://www.realestatezebra.com) and possibly his Twitter handle (@realestatezebra), and that they’re afraid he’ll say no if they offer to buy them off him. If that happened, they wouldn’t have a prayer if they brought a trademark infringement case. I think they’re hoping for a settlement where they get his domain in exchange for dropping the lawsuit. And it looks like their approach has worked because Rothamel posted a blog tonight in which he shared a letter offering to stop using his domain, Twitter handle, and any reference to himself at the “Real Estate Zebra” in exchange for them dropping the suit.
Damn it! I hate it when it appears that people are misusing the law to try to force people to give them what is not theirs to take. I think Rothamel had a winnable case but he I’m guessing he probably couldn’t afford the potential legal fees if the case went to trial or worse, if he lost.
While I heard about this situation through my friend Jay Thompson, I don’t know Daniel Rothamel or anyone at The Lones Group, nor do I have any personal interest in the outcome of this case. Based on the information in the complaint, my own research, and the knowledge I acquired in my trademarks class, I don’t think Rothamel is infringing on of the The Lones Group’s trademarks or trade dress.
Last week the law school invited Katy Goshtasbi of Puris Image to speak about personal branding. My friend said she had good information about how you should dress and act. I was a little afraid that she was going to prescribe a cookie-cutter uniform that all lawyers need to adopt in order to be successful. I was so glad I was wrong.
Katy Goshtasbi, Photo from Puris Image
My friends will vouch for me that I am not a typical girl, woman, chick, what’s the female equivalent of “guy?â€Â I’m a pretty rough-and-tumble person. I prefer to be comfortable than to be pretty. I will rarely torture myself with clothing that restricts my movement or shoes that pinch my toes. At most, I do 5-minute make-up before walking out the door on a typical day. I have been mistaken for a man. For my 18th birthday, my sister bought me Victoria Secret lotion and said, “If you’re not going to dress like a girl, you can at least smell like one.â€
Now it may seem like I don’t care about how I look, but that’s not true. I am very particular about the clothes I buy. When I’m in cute mode, I’m determined to be very cute. However, you’ll never catch me dressing like a girly girl. Even when I’m in a dress, it’s obvious that I’m not a girly girl. Even when I’ve tried to be a girly girly, it doesn’t work.
I was overjoyed when one of Goshtasbi’s take away messages was “Be Yourself.â€Â Thank you! I was so happy to hear that someone might get me and promote the fact that there’s more than one way to be portrayed as a successful professional.
I want to be the lawyer to the geeks and I’m glad that my potential clients are typically found in jeans, t-shirts, and hoodies. Goshtasbi’s talk brought to my attention the fact that I had adopted my future client’s preferred wardrobe as my everyday uniform. This may not be portraying my desired image of “sassy, smart, and strong.† Goshtasbi inspired me to become reacquainted with my closet.
Goshtasbi said that she would give a free 40-minute phone consultation to the first 3 people who approached her at the end of her talk. I wanted one of those slots, but I was sitting 3 rows back and 4 seats in from the aisle in a room with stadium seating with long tables instead of individual desks. There was no way I could get to her if I went the traditional route. Drastic measures were required to achieve my goal. The second Goshtasbi was done talking, I climbed up on top of my table, and walked down the tables as if they were stepping stones to Goshtasbi podium. It was unconventional but it worked. I can’t wait to talk with her next month during our session.
