Urban Homestead: Trend or Trademark?

A story has been making a lot of buzz over the past couple days. In October of last year, the Dervaes family, of Homestead in the City in Pasadena, have acquired registered trademark status for both "Urban Homestead" and "Urban Homesteading" -- and have been sending notifications to blogs and other sites that use those terms to either change the usage or apply the ® symbol and give credit to them for it. 

A kerfuffle ensued, with people immediately rising to arms to defend the use of the terms as descriptors of a cultural phenomenon, not of a singular business or practice. An (awkwardly named) Facebook group sprung up to Take Back Urban Home-steading(s), and folks have been going out of their way to use the terms in defiance of the action. 

The Dervaeses have volleyed back on their blog, but with some specious logic. In one post, Anais debunks that they've been sending "cease and desist" notices, running the entirety of the "normal, professional and informative letter" that they've been sending to those who use the terms. While the words "cease and desist" do not techincally appear in the letter, it does specify that "if your use of one of these phrases is not to specifically identify products or services from the Dervaes Institute, then it would be proper to use generic terms" and then goes so far as to suggest alternative language for you to use. Anais' contentious tone at the beginning to "please find" the cease and desist language in the letter and the subsequent post titled "Truth for a Change" don't win her any friends, either. 

They go on to attempt to clarify their legal position, but in the end may continue to unravel their stance. Speaking to the points of how a trademarked phrase can be used, they say, "You can have an urban farm that practices urban homesteading techniques and use biodynamic compost: THIS IS NOT A TRADEMARK VIOLATION. However, if you publish an urban farm magazine, commercially promote urban homesteading or sell biodynamic compost:  THIS IS A TRADEMARK VIOLATION." 

This much is absolutely true, and so does not bode well for businesses like Oakland's Institute of Urban Homesteading. That could in fact create confusion in the marketplace, in that the IUH is not teaching the Dervaeses' practices specifically. This pains me on a personal level, as I've taken a cheesemaking class at IUH, and would hate to see Ruby's business suffer, which it certainly will. Already,  as a result of action on the part of the Dervaeses, her Facebook page has been blocked -- a great limitation for a small business. 

More baffling, however, are that the letters were sent to Evan Kleiman at KCRW's Good Food and the Santa Monica Public Library, both public institutions and both who have featured the Dervaeses in past events. 

Personally, I never liked the term "urban homesteading" to describe the current phenomenon. On the one hand, not everyone who's involved in it lives in an urban environment, and on the other, "homesteading" makes me feel like I should be wearing a calico frock. But the fact remains that the phrase has been in the common vernacular for some time -- the OC Weekly states that it's been documented in newspapers since at least the 1980s -- some 20 years prior to the Dervaes' filing. 

To my mind, the US Patent and Trademark Office made an error in judgment in allowing these terms to be trademarked because of exactly that. In fact, the Dervaes' filing had been previously denied for that reason. Nicole of FARMcurious did a little digging, and found that "on Dec 9, 2008 their original application was refused because 'Many entities provide a variety of print and online publications and services on the same subject matter.' In order to execute their trademark application, they had to go back and show evidence that they had 'acquired distinctiveness' through exclusive (which we know to be untrue) and extensive (which is not deniable) use of the term.  What I don’t understand is why the application was approved in the end; even though they could show extensive use, they certainly couldn’t demonstrate exclusive use of the term." Best evidence: A book titled The Urban Homestead: Your Guide to Self-sufficient Living in the Heart of the City, written by Kelly Coyne and Erik Knutsen, was published in June of 2008. The cat was clearly well and truly out of the bag. 

Internet justice is swift and often cruel, and the Dervaeses have hunkered down in the storm. They've taken down the Facebook page for Path to Freedom (the actual name of their family business) and have blocked comments on any blog posts around the trademark matter. While I understand they were surely suffering unfair and unwarranted berating, in this age of social expression, it's rarely a good idea to shut the door so firmly. It seems like there should be an appropriate venue for  them to air their stance and allow healthy debate, or at least let commenters vent their spleens and be done with it. 

Considering the virulence with which the Cooks Source scandal was met last year, wherein a small magazine was literally crushed out of existence by the angry mobs, you'd think the Dervaes would be more contrite and flexible in their response to the outrage. Arrogance and superiority rarely fly well in social media. 

What do you think? 

This page shoud answer a lot of your questions

Funny...

I wonder if they are going to take the government to court, for violating their trademark:

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.jo...

Do really Dervaes has as much rights as he claimed

Urban Homesteading trademark was registered in Supplemental Register. It means that is merely descriptive.
Descriptive marks (or more properly, "merely descriptive marks") are devices which merely describe the services or goods on which the mark is used. If a device is merely descriptive, it is not a mark at all, since it does not serve to identify the source of the goods or services. No trademark rights are granted to merely descriptive marks. No secondary meaning was developed by Dervaes to make it a protectable trademark. Most of people believe and there is sufficient proof in the internet that Urban Homesteading is generic phrase and therefore is incapable of functioning as a trademark
The benefits that apply to Supplemental Registrations are:
1) the mark will appear in trademark searches, and that the registrant is given the right to use the ® symbol in connection with the mark.
2) In addition, having a mark registered on the Supplemental register will assist in achieving registration of the mark in certain foreign countries.
3) Finally, Supplement Registrations can be used to help prove exclusive use of a mark for a five year period, which is one of the ways in which secondary meaning may be proved to the U.S.P.T.O.
Even if no opposition is filed, and the application becomes registered, it is still possible for a third-party to object to the registration of a particular mark. This objection is usually made through a cancellation proceeding, which is similar to an opposition proceeding except that it takes place after registration.
Infringement criteria:
The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff.
To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following factors:
1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
3. the strength of the plaintiff's mark;
4. any evidence of actual confusion by consumers;
5. the intent of the defendant in adopting its mark;

see details http://www.bitlaw.com/trademark/index.html

Back in July 2010 it was

Back in July 2010 it was first publicly Published for Opposition on the uspto.gov website. However at that point if no one objects to the filing they will rubber stamp it and collect their fees.

In the past Urban Homestead had been registered for a retail clothing store CO. Now Jules Dervaes has gone on record to defend their actions to protect their business and the likes of Nike and Apple have registered trademars which is correct but is a skewed point of view.

First Nike has the registered trademark of Nike and not 'Shoe' as we all know Nike makes shoes but they are not able to Trademark 'Shoe' as that is a generic term/word.

Now on to Apple. Their actual Trademark is Apple Computers and not just Apple as it is a generic term/work.

Thus the term/word 'Urban Homestead or Urban Homesteading is not enforceable as it is a generic term/word like shoe or apple or tree or car...

The only reason they were able to get this mark through is no one made a fuss during the filing process; however, this is not like a marriage 'speak now or forever hold your peace' just bring the issue before a Judge and with the previous uses of the generic term/word and that trade mark wont be worth the paper it is written on.

They have around 18 different

They have around 18 different Trademarks at this point, I just dont understand why any small corp. needs that many excpt possibly to get as much money as possible

Pure Self-Righteous Nonsense

I was semi-interested in the Dervaes before, but now I am officially all done with that lunacy. Wow.

Totally Off Base

Sean, you already know what i think because i have been having little apoplectic fits about this in various places, FB, etc. I really do appreciate your having run down prior historical use of the term, because I think this is the point. This is a general term and has been in use for a number of years. Who at the US patent office did one of the Dervaes' sleep with to get this approved?

I too worry about places like the Institute for Urban Homesteading. I don't know if a lawsuit can be brought, but it should, if possible. And I would urge people to use this term everywhere and as often as possible. Agree with the reader that said the phrase that should have been trademarked is "Path to Freedom." Agree that this is just - slimy; hence my anger. Are we now stooping to the same sick corporate tactics that try to stamp anything and everything in the public domain with a moneymaking trademark? This is a phrase in the public domain - it is no different.

At the very least folks, if this cannot be challenged in court, a Dervaes boycott is in order.

Agreed.

Agreed. Thanks for your calm assessment of the situation. It's unfortunate all around.

I think they could have

I think they could have trademarked their business name, Path to Freedom, and their family name, without trademarking the phrase "urban homestead." I also think the USPTO made a bad call, when the phrase had so obviously been in use and in print before the application.

I very much appreciate your

I very much appreciate your thoughtful and calm response to the insanity. I wish the Dervaes family had gone about everything differently, but alas, they didn't. Hopefully none of the affected parties will be too greatly harmed by the selfish actions of the Dervaes family.

Thanks, Eva

I've been on both sides of this coin, and have spent a number of years dealing with copyright issues. I understand their desire to protect their business, but if they had come at it with a different approach this all might have been avoided.

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