On the trademarking of ‘urban homesteading’: The Original Best Most Complete Post on the Subject™
By Mat Rogers, Director of Agrariana
Language and terminology are an integral part of the food movement. Making distinctions between agricultural practices deemed vile and reprehensible, in favor of methods moral and healthful, is a critical organizing tool for activists. Thus the good-food lexicon is immense -- organic, biodynamic, no-spray, cage-free, free-range, heirloom, open-pollinated, non-GMO, pastured, rGBH-free, grass-fed, to name only a few of the positive terms. Debate over how these get defined and used has been an ongoing internal struggle of the movement.
Two very particular bits of language -- urban homestead and urban homesteading -- and who has the right to use them, have been fulminating controversy amongst food activists since late last week. It came to light that since June 2, 2009 the trademark to the term Urban Homesteading has been held by a non-profit group called the Dervaes Institute and that the Institute acquired the trademark to Urban Homestead on October 5, 2010.
The Dervaes Institute is the nonprofit side of the Pasadena, California-based team of urban farming and radical homemaking proponents, led by patriarch Jules Dervaes and including his three adult children. The Dervaeses have aggressively transformed their yard to produce as much food as possible, producing several thousand pounds a year. The Institute has an extensive website and blog, and does community outreach activities. The family has been featured in the documentary film HomeGrown, winner of the People’s Choice Award at the 2010 Wild and Scenic Film Festival,and in lengthy profiles in the Los Angeles Times and The Telegraph.
The Institute recently sent an “informational letter” to potential trademark infringers -- and fervent activity, largely on the Internet, ensued.
(Note: Much of the online commentary has alluded to what “the Dervaes family” has done or stated, even though it is not possible to know the private inner workings of the Dervaeses as a family. To be consistent, and in an attempt to sling as little mud as possible, in this post I will refer whenever possible to the Dervaes Institute or the Institute.)
Several news outlets, including OCWeekly, BayCitizen, and LAWeekly, have already reported how the controversy unfolded. But the saga is so fascinating in its plot turns, especially how it developed in the online food activist community, that I hope readers will indulge a brief rundown of the events. If you're familiar with the saga, skip down to the next subhead.
On February 13 a letter arrived in the mailbox of K. Ruby Blume of Oakland. The letter's stated purpose was to “inform you of important matters regarding the published works and/or brand names of Jules Dervaes and Dervaes Institute” and that the Dervaes Institute owns trademarks to URBAN HOMESTEAD®, URBAN HOMESTEADING®, PATH TO FREEDOM®, GROW THE FUTURE®, HOMEGROWN REVOLUTION®, FREEDOM GARDENS®, LITTLE HOMESTEAD IN THE CITY® and has also filed a copyright claim to “The Ten Elements of Urban Homesteading.”
Blume received the letter as notice that her Institute of Urban Homesteading (IUH) website (iuhoakland.com) and the website of her soon-t0-be-released book with coauthor Rachel Kaplan, Urban Homesteading: Heirloom Skills for Sustainable Living (urban-homesteading.org) could be infringing on the trademarks held by the Institute. After a brief synopsis of the Institute’s history and work, the letter acknowledged that infringement of its trademarks may have been “inadvertent” and gave instructions on how to credit the Institute’s work and materials, so that the issue could be resolved without “involving our legal counsel.” It suggested that if use of any of the trademarked phrases did not refer specifically to Dervaes Institute products or services, it would be “proper to use generic terms…such as ‘modern homesteading,’ ‘urban sustainability projects,’ or similar descriptions.” Any use of the trademarked phrases requires the trademark notice (®) plus a note in close proximity that the phrase is a protected trademark of Dervaes Institute.
“I didn't really know what to make of it," Blume said of the letter. Then on February 14, she received an email from Facebook administrators stating the pages for IUH and for her book were being suspended for suspected trademark infringement. When Blume logged into Facebook, an acknowledgment notice popped up and when she clicked it, in an instant the pages were gone.
By this time, others using the phrases urban homestead or urban homesteading were reporting having their Facebook pages disabled and/or had received letters from the Institute. The Facebook page for Denver Urban Homesteading, a market and educational center, was disabled, as was the page for the book The Urban Homestead by Kelly Coyne and Eric Knutzen. FeralHouse Publishing/Process Media, publishers of The Urban Homestead, received a letter, as did blogger Jamie Milks about her website The Urban Homestead Experiment. One or more of the organizations involved in a Feb. 10 panel discussion on urban homesteading -- moderated by Evan Kleiman of KCRW’s Good Food and co-sponsored by the Santa Monica Farmers Market and the Santa Monica Public Library -- reportedly received letters also. Even Google apparently was sent a letter regarding trademarked content that appeared in searches.
Once the various so-called infringers found out this was happening to others and made connections, they realized that the actions of the Institute constituted an attempted takeover of phrases believed to be held in common, and that immediate action was necessary. Blume sent an email to IUH’s 1,500-member mailing list explaining the issue and asking for support. “I simply think it is wrong for one group to own the name of an entire movement! and profit from it,” she wrote. Others reached out to their supporters by whatever means still at their disposal.
Then the proverbial backyard chickenshit hit the fan.
April Krieger of Eureka, California, created a Facebook fan page called ‘Take Back Urban Home-steading(s)’ with intentional spelling idiosyncrasies to circumvent the trademark policy. The page gained 1,000 Likes in 24 hours and stands at over 4000 fans as of Monday. Twitter buzzed with the hashtag #dumpthedervaeses. On change.org. a petition went up to ‘Cancel Trademarks on Urban Homestead and Urban Homesteading’ that now has more than 1,000 signers. OCWeekly blogger Gustavo Arellano was an early and particularly strident voice, calling the Dervaeses ‘dingbats,’ ‘sanctimonious,’ and ‘tools’ and getting quotes from Feral House’s Adam Parfrey comparing Jules Dervaes to David Koresh and Ted Kaczynski. A summary of what had been blogged to date on the blog Seasons in the Soil noted a “cult-like vibe” from the Telegraph profile in which Jules Dervaes “asked the children to put their romantic lives on hold 'until we can make a move’.” The Institute's blog also had links to fringe religious writings attributed to Jules Dervaes. Monday, February 21 was designated “Urban Homesteading Day,” a day of action on the issue.
Monday, February 21 was designated “Urban Homesteading Day,” a day of action on the issue and the blogging was fierce. Bloggers Crunchy Chicken and Seasons in the Soil were keeping logs that collectively documented well over 200 posts on the subject. The Tiny Life, a blog dedicated to the small-house movement, did not know of the controversy surrounding the Institute and inadvertently posted a video featuring Jules Dervaes discussing forming an eco-village, resulting in a flood of negative comments.
Amidst the flurry of negative attention, the Dervaes Institute fired back in a series of posts on the group’s blog and in a press release. The Institute asserted that they, not their legal counsel, sent a total of 16 letters, that they are not suing anyone, and defied critics to find the words “cease-and-desist” in the letters received by IUH and others. The Institute maintained that while the Dervases "did not come up with the name Urban Homesteading®, they defined its current, specific application” which lead them to seek the protection of a trademark. The Institute also warned of phishing emails, falsely attributed to the Dervaes Institute, telling bloggers to “pay up or stop” in an attempt to extort money. Comments on the Institute’s blog and the group’s Facebook page were disabled to protect fans and the family from “threats and harassment” until “cooler heads prevail.”
The LAWeekly piece claimed the Institute had Tweeted (now deleted) that the family had received a death threat. None of the rumors of phishing, death threats, or similar hearsay could be confirmed independently at this time. The Institute’s blog also complained that bloggers who didn’t substantiate their facts before publishing had made slanderous comments and that many writing about the story hadn’t the “common courtesy” to get the Institute’s side of the story and were victims of the “Rumor Mill.”
After sifting through all the intrigue and hyperbole that have been generated in the last few days, real questions remain, not the least of which is ‘Does the Dervaes Institute have a legal leg to stand on?’ Trademark law and regulations are not exactly transparent, nor do they always follow logic. Unfortunately, my attempts to locate an expert in trademark law to comment on the issue were fruitless.
The Urban Homestead authors Coyne and Knutzen and their publisher Process Media have apparently had better luck. They found representation from Corynne McSherry, Intellectual Property Director of the Electronic Frontier Foundation (EFF), who on Monday posted on the EFF blog that the Institute’s claims were baseless and included a copy of the scathing letter emailed to the Dervaes Institute demanding the Institute take action to reverse the shutdowns it had caused, or face legal action.
There are some interesting points that arose when I looked into the topic and read others’ posts.
The uproar was a good reason to search for earliest uses of ‘urban homesteading.’ As there isn’t time to pore through library archives, the effort is partially limited by age of documentation on the Internet. However, usage of two distinct meanings of the phrase dates back to at least the 1970s. The definition referring to efforts to move people into blighted urban neighborhoods or to renovate buildings in those neighborhoods was the subject of a book titled Urban Homesteading by James Hughes and Kenneth Bleakly, published in 1976. Hughes is now the Dean of the School of Planning and Public Policy at Rutgers University. Mother Earth News also had an article on this use of the phrase dated 1980. The other use of urban homesteading, related to activities surrounding intensive backyard gardening, was used in a 1976 Mother Earth News article on the Integral Urban House, a Berkeley, CA experiment, calling the house “one of the country’s most innovative and successful ‘urban homesteads.'"
That article states that “Half a dozen IUH [referring to the Integral Urban House, not Institute of Urban Homesteading] residents grow their own fruits and vegetables, raise chickens, rabbits, and fish, recycle 90% of their wastes, solar heat their hot water, and conduct a variety of alternative technology experiments . . . all on a 1/8-acre city lot!” which sounds very similar to the way of life endorsed by the Dervaes Institute.
Finding references to the garden-related use of the phrase between 1980 and 2001, when the Institute claims it started developing the current use of the phrase, is difficult, again partly because of the way use of the Internet has changed. The first Dervaes post to use the words ‘urban homestead’ is from January 16, 2002.
Several posts on the Institute’s blog try to explain the Institute’s position and clarify trademark law. In a clever turn of phrase, it is noted that “Apple is a fruit but Apple® is a registered trademark for computers, computer software, computer peripherals, etc. Nike is an ancient Greek Winged Goddess of Victory, but also NIKE is a registered trademark for sports apparel, etc.” One posted titled ‘Who Owns These Trademarks?’ gives examples of other trademarked words, including phrases related to the food movement, listed as evidence of “commonly used everyday words and terms which everyone has heard of but may not have known are registered as trademarks.”
The Ethicurean's Marc R. aka Mental Masala straightened me out on how some of this trademark stuff works. In the U.S., there are marks for two unregistered and one registered trademarks: TM is for an unregistered trademark for goods, SM is an unregistered mark for services and ® is for a trademark registered with the USPTO.
I established a trademark as of today for the title of this post, but it would be illegal for me to use the ® mark because I have not registered it. A trademark may be a name, word, phrase, logo, symbol, image, design, or combination of elements. Trademark registrations are granted for specific uses of goods or services requested by the applicant and granted by the USPTO reviewer. Thus trademarks may be registered for the same word or phrase where the trademarks are used for different brands or services and the likelihood of confusion between the various trademarks is low. Trademark registrants must prove the distinctiveness of the manner they use the trademark for the specific good or service, must continuously use the trademark (or it may become available to other potential registrants), and must take action to ensure their exclusive use of the trademark.
You can search for the holders of trademarks on the U.S Patent and Trademark Office database, so I looked up some of the example trademarks given by the Institute.
Some of the trademarks, such as Square Foot Gardening (owned by Mel Bartholemew), and Grow Biointensive (owned by Ecology Action of the Mid-Peninsula, John Jeavons, President and Executive Director) are easily recognized (at least by this writer) as brands owned by their inventors. Live registrations of ‘victory garden’ are owned by various registrants for fresh vegetables, potpourri, and antiques and ‘The Victory Garden’ is owned by WGBH Boston, which produces the public television show, so use of the meaning ‘gardens planted as patriotic effort to reduce the burden of farmers during a time of war’ would not infringe on any marks.
Trademarks of other words now in common usage, such as ‘biodiesel’ and ‘urban farming,’ are trademarked as company logos (see images, left and right). The trademarks to Urban Farm and Hobby Farm are held by BowTie, Inc., publishers of UrbanFarm and HobbyFarm magazines. The trademark to Locavore is held by an apparel company in Iowa. The trademark to biodynamic for” Products meeting organic and as well as certain ecological, farm diversity and other standards and guidelines” is owned by Demeter International, the oldest and largest certifier of biodynamic farmers, whose certification program has existed since 1928, three years after Rudolf Steiner’s death. The trademark wasn’t obtained until 2003, which would correlate nicely with the increased interest in biodynamic farming.
The trademarking of ‘Seeds of Change’ was perhaps the most interesting to me. For purposes of food products (listed in several trademark registrations for confectionary products, rice mixes, pasta sauces, salsas, salad dressings, and frozen entrees), the trademark is owned by Mars, Inc., the company that makes Snickers® bars and M&M’s®. Only the trademark for the purposes of agricultural products (i.e., seeds) is held by Seeds of Change, Inc., the familiar seed company.
I couldn’t find a single example that closely matched the situation with " urban homestead" and "urban homesteading." The other trademarks were either phrases unique to their inventors, unique brands, more common words used uniquely as part of specific and distinct brands, or terms long associated with the registrant. In none of these examples does it seem that legal action could be brought simply for the use of a trademarked phrase by its common definition. I can’t start a magazine called Urban Farm but I’m free to start Mat’s Urban Farm. I can’t print Locavore brand shirts, but I can open Locavore restaurant.
The trademark registrations for urban homestead(ing) owned by the Institute are for a very broad use:
Educational services, namely, conducting informal programs in the fields of sustainable living, organic foods and gardening, homesteading, the environment, and conservation, using on-line activities and interactive exhibits; entertainment services, namely, providing a web site featuring photographs and audio and video recordings featuring instruction and current events reporting on sustainable living, organic foods and gardening, the environment, and conservation; on-line journals, namely, blogs featuring the subjects of sustainable living, organic foods and gardening, the environment, and conservation.
The phrases were first uniquely used by the Institute for this type of good or service in business in 2002. This usage overlaps the dates and the manner in which the phrase was used by others. FarmCurious reported that the registration was initially denied because the phrases are “merely descriptive” and it couldn’t be proved the phrase as used by the Institute had "acquired distinctiveness.”
So it would appear to this non-expert that either the Dervaes Institute pulled off a slick legal maneuver, or their reading of the way in which phrases are protected is not correct. I can imagine a specific Institute logo including the words Urban Homestead could be trademarked, but not use of the phrase itself. To my knowledge none of the uproar surrounding the Institute is directed at the other arguably unique phrases developed by the Institute.
It is to the multitude of other phrases and URLs used by the Dervaes Institute that I want to direct your attention next.
The website’s own masthead uses both “Path to Freedom” and “The Original Modern Urban Homestead.” The blog uses “Little Homestead in the City.” The footer of urbanhomestead.org, which is also at the bottom of several of the Institute’s other websites, is most intriguing. In the footer are the following phrases, some with hyperlinks: Under heading “SHOP” are Dervaes Gardens (dervaesgardens.com), Peddler’s Wagon (peddlerswagon.com), Urban Homestead Brand, and Handcrafted Heirlooms; under heading “NETWORK” are Freedom Gardens (freedomgardens.org), Urban Homesteading, Barnyards and Backyards (barnyardsandbackyards.org), and Freedom Kitchen; under heading “OUTREACH” are Dervaes Institute (oddly, no link), Jules Dervaes (julesdervaes.com), Grow the Future (our non-profit fundraising), and Homegrown Productions; under heading “MEDIA” is Homegrown Productions (homegrownrevolutionfilm.com); and finally under heading “CAMPAIGNS” is 100 Foot Diet, Harvest Keepers, Free the Seeds, Liberate Your Backyard, and Urban Chickenistas.
Checking the USPTO database again, some terms, like Peddler’s Wagon and Free the Seeds, are already trademarked by the Institute. Barnyards and Backyards has been filed for a trademark as of October 2010, and others do not appear in the database.
Empire of the sun
I believe that what was witnessed by the urban homesteading community in the past few days was just a small slice of the Dervaes Institute’s efforts to establish an omnimedia network.
I have no real ethical position to take upon this realization: plenty of people are trying to make a living from their expertise surrounding the renewed interest in food and sustainability. I just find the complexity and the amount of effort on the legal, organizational, and promotional aspects mind-boggling, considering how most involved with urban homesteading let those things slide to go get dirty in the garden or to play with their food.
I can't begin to speculate about the Dervaes’s motivation, but I do refer readers back to the Telegraph profile that indicated the family suffered through unusually hard times and has almost fanatical zeal about their current way of life. My one tongue-clucking moment came when I read the Institute’s "10 Elements of Urban Homesteading." Number ten is “Be a Good Neighbor” : in that element’s description, it stated that one should “Be a neighbor, not a business person.” Now, I don’t consider the letters or take down orders from the Dervaes Institute very neighborly. (Here I am probably guilty of not giving the Dervaeses the common courtesy of allowing them to comment. I did intend to contact them when first outlining this story, but after the great amount of attention focused their way, I can only imagine they must be exhausted and near a state of shell shock. Perhaps when cooler heads do prevail, I will share this and solicit feedback.)
Concerning the variety of names used by the Institute to denote their activities, clever language is an undeniable part of the food movement. I personally think that’s because many in the movement were in the drama club, rather than being the prom king or queen, and because restaurants have been doing it for years. Part of it is branding, which everyone is unconsciously hyperconscious of today, and part of it’s just for fun, especially in the nonprofit sector.
My own organization’s name, Agrariana, was coined as near as I can tell by our compatriot Severine Fleming of the Greenhorns to mean “all things agrarian” and registered as a URL for our student group in 2006 or earlier. We have campaigns called ‘Meet Your Meat,’ ‘The Backyard Seed Bank,’ and ‘The Food and Farming Film Festival.’ And it seems every other food event or endeavor, at least in the Bay Area where I’m located, does the same thing: Canvas Underground, the Pork Prom, Pop-up General Store, Ferment Change, and many, many others.
Debates over words used by the food movement have happened before and they will happen again. Some may remember the great turmoil as the USDA implemented new organic standards in 2002, and in the process (re)defined organic in such a way as to outrage and alienate many early practitioners of organic production. At least one person argues that any use of the word ‘homesteading’ harkens back to the racism of the Homestead Act, enacted as part of manifest destiny, and should be avoided by this progressive movement altogether. Even the very term ‘food movement’ is a phrase that not everyone likes nor can agree to use.
For a movement so much about language, I wouldn’t expect anything less. But when we start making words more important than collective action, and start arguing that we own words in common use, the movement is losing the battle we have set out to win and forgetting our true enemies.
The amount of effort and dedication rallied around this cause that I have witnessed in the past several days is astonishing. The true tragedy will be if the power of the movement can’t now be focused on accomplishing a real and needed task, which is increasing our supply of SOLE food -- to borrow the Ethicurean's shorthand phrase for food that's sustainable, organic,local, and/or ethically produced.*
[Editor's note: While the cofounders of this blog coined the phrase Ethicurean to connote someone who enjoys food that is both tasty and ethical, we did not trademark it, and a company in Australia rather annoyingly did so last year in order to market reusable shopping bags -- also borrowing our acronym for SOLE food as well. Oh well.]
Mat Rogers is a doctoral candidate in ecological engineering at the University of California at Berkeley studying natural water treatment systems. He is the director of Agrariana, a non-profit with the mission “To rescue for human society the native values of rural life.” Mat lives in Oakland, CA, where he documents food and gardening projects on the Agrariana blog and does science-y stuff at matrogers.com. You can follow him on Twitter @matrogers.
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