[Updated, Again]: Dervaes Family Trademarks "Urban Homestead" Term: Legal Battle Follows
Updated, 2/22, 12:30 p.m.: The Dervaes family recently filed a Digital Millenium Copyright Act (DCMA) take down notice to Google regarding content in The Urban Homestead by Kelly Coyne and Erik Knudsen.
The authors of The Urban Homestead (which is now on backorder on amazon.com) and their publisher, Process Media are now being represented by the Electronic Frontier Foundation (EFF). EFF Intellectual Property Director Corynne McSherry didn't waste any time and issued a cease and desist letter on Monday, with detailed legal precedence and a Friday, February 25th response deadline. She was a little incredulous that the Dervaes family had even filed the DMCA notice, as it's specifically used for copyright and not trademark violations.
"The DMCA sets up this system for easy takedown when there's a copyright complaint," said McSherry. "Not trademarks, not defamations, not any other type of legal complaint a person might have."
She also noted the language used in the DMCA was incorrect and that Google hasn't responded to it, which she expected since it was an improper use of the DMCA.
As to their strategy, McSherry is keeping things under wraps for now. "The first step is to see if they are willing to withdraw their complaint and we'll see how that works out. Many people are upset," she said.
In fact, the Facebook page, Take back Urban Homestead-ing(s), which was started in response to the Dervaes aggressive policing of their trademarks, has ballooned in less than a week to over 4500 members. The earlier vitriol has toned down a bit, but not the sense of activism and momentum. Urban homestead bloggers quickly organized a day of action on Monday, February 21st, encouraging bloggers to "take back urban homesteading," resulting in a Facebookian mountain of blog post links and discussions.
The lawyer whose name pops up all over the trademark paperwork is Erik Pelton, a trademark attorney based in Virginia and a former employee of the U.S. Patent and Trademark Office. Even so, the original informational letter and the subsequent DMCA take down notice sent to Google came straight from the Dervaes Institute and not Pelton's office. Pelton was interviewed for American Airlines Sky Radio (date unknown) and he discusses what makes a strong trademark (originality, made up words like Xerox or Kodak, etc.) and what constitutes a weak trademark. "Weak trademarks are descriptive or generic words. Generic words like 'laptop' for computers or 'quick subs' for a sandwich shop are very very weak trademarks and are only entitled to minimal, at best, protection." Pelton is out of the office this week and was unavailable for comment. It is unknown if he is still representing the Dervaes Institute in this matter.
Previous updates and the original post after the jump.
Updated, 2/18, 10:33 a.m.: In an attempt to wield some damage control and hopefully stop the harassing calls to their home (they published their phone number early on) and negative comments to their blog, the Dervaes family has issued a press release which is apparently doing the exact opposite.
The focus of the release, titled "Dervaes Family Pursues a Legally Protected Legacy," attempts to solidify their right to these trademarks and justify the uniqueness of what they do. Oddly enough, they use a Wikipedia page on urban homesteading to help define what they do. Wikipedia's definition (Urban homesteading can refer to two different things: a form of squatting, or the activity of urban gardening, with the purpose of reducing one's impact on the environment.) seems to contradict the Dervaes' claim on uniqueness.
In addition, the Dervaes recently claimed on their blog there's a "stop or pay up" hoax letter being sent in their name to other urban homesteading bloggers. "There are accounts that bloggers are receiving "stop or pay up" letters regarding the trademarks. This is a hoax and the demand is not being made by us."
Given how charged this situation has become, the actual receipt of anything demanding money from bloggers is expected to generate some pretty uncontrollable Internet flame. A scan of 10 "urban homesteading" blogs revealed no demands for money from the Dervaes and a request for information to the 2500+ members of the Take Back Urban Home-steading(s) page on Facebook has yielded nothing but repostings of the Dervaes' original informational letter.
Updated, 2/17/11, 11:05 a.m.: There's now an online petition on change.org to "Cancel Trademarks on Urban Homestead and Urban Homesteading." Whether or not this will actually produce the outcome they (the urban homesteading community) are aiming for remains unclear.
Updated, 2/17/11, 9:04 a.m.: The Dervaes family shut down their own Facebook page late last night and issued this response on their website (which is now flooded with traffic) to the escalating resistance to their trademark efforts:
We apologize to the readers & supporters who, out of a misinformed few, have been stuck in the middle of this unfortunate situation.
We thank those who have kept a level head in this and we appreciate your patience & understanding
Regarding the "shutdown," we are sensitive that some people (our friends and supporters) did not deserve the ugly and mean treatment we are getting. So, we sought to protect and spare them the assault and dirt slinging they were receiving by being caught in the middle.
It such a virulent atmosphere and we are receiving harassing emails, comments and calls. Don't believe everything you read. The internet is full of information and false rumors not a kind battlefield
For those who have cared to ask our side to this we thank you. It's sad to see that many have not had the common courtesy.
The original post, published 2/17/11:
Perceived cred doesn't automatically give you the political capital to trademark popular phrases associated with what you do for a living, but that isn't stopping the Dervaes family of Pasadena.
This past week, the Dervaes Institute, the parent organization run by the Dervaes family, started sending out "normal, professional and informative" letters to anyone using the following trademarked terms: URBAN HOMESTEAD®, URBAN HOMESTEADING®, PATH TO FREEDOM®, GROW THE FUTURE®, HOMEGROWN REVOLUTION®, FREEDOM GARDENS®, LITTLE HOMESTEAD IN THE CITY® (the last one is pending, but it's included on the original letter.). They also asked Facebook to take down pages that violated their trademark, which Facebook has done.
A Google search of "urban homestead" yielded 343,000 items; only the first two are Dervaes-associated links. One wonders which tasks they'll prefer: mucking out the goat pen and harvesting snow peas or endlessly defending the trademarks that have been part of the common language of the local food movement for years to come.
The Dervaes family of Pasadena (Jules, the patriarch, and three of his four children: Justin, Anais, and Jordanne) have been steadily cementing their leadership status in the urban homesteading movement. They definitely have the longevity cred. Jules started living off the land in a remote homestead on the south island of New Zealand back in the 70s and his family has been slowly transforming a once ramshackle bungalow in northeast Pasadena into an environmentally sound wonderland of composting, solar panels, rain barrels, and aquaponics for the past 20 or so years. The advent of blogging gave them a bigger sounding board to preach the "Path to Freedom," and they've been gathering a larger and larger audience since 2001, when they launched their website.
The reason for this recent legal feather ruffling? An online statement released on Wednesday stated, "as the popularity of Urban Homestead and Urban Homesteading increased and began to label everything from television productions to big agriculture products, we couldn't shake the warning bells in our minds. You tell us... who would you rather own the trademarks? Us or a big business corporation?"
Jules Dervaes defended the trademark move in a phone interview as a sensible move to protect his and his family's life work.
"We just wanted the term "urban homestead" to be part of what we started [at Path to Freedom] and be a pure standard and a legacy of what we started here," said Dervaes. "We invested a lifetime of work and my childrens' work to make this a real possibility to help people. We only ask for donations to continue our outreach. The money that we gain was to be used as a model to educate people. We've been around the world teaching this model. We wanted to keep it in the family."
The online response? People in the urban homesteading movement, both here in L.A. and beyond, are viewing this move by the Dervaes as a decidedly corporate move, non-profit status or not, showcasing the very kind of behavior they claim to decry.
"It is extremely small minded and sort of defeats the purpose of educating people towards a more natural lifestyle," said one of the more diplomatic commenters on a recent post to The Crunchy Chicken. But our favorite? "I am thinking Metropolitan Farmstead has a nice ring to it." Dervaes did note that they didn't trademark "homestead" or "sustainability" and that people are free to use the trademarked terms, so long as they note the trademark with proper credit given to the Dervaes family.
People who have been sent the informational letter about the trademark include Evan Kleiman, for using the phrases in her Good Food blog and The Institute for Urban Homesteading (IUH) up in Oakland, which according to Dervaes, was one of the first organizations to respond negatively to the letter.
This comes as a surprise to K. Ruby Blume, the founder and headmistress of IUH, who says that she's had no contact with the Dervaes, directly or indirectly, since receiving the informational letter.
"I know nothing about trademark law," said Blume. "But it was soft language [in the letter]. I don't use their goods or service or statements for anything. They said it would be 'proper' to use generic terms to replace the registered trademark. 'Proper' didn't tell me to do anything. I didn't really know what to make of it."
After Blume started speaking to several other homesteading advocates across the country (part of what's been her week long "fact finding" process) various Facebook pages started getting shut down. A farmers market she had contacted in Denver, Colorado, that used their Facebook page to do outreach to 2000 people was shut down. The IUH's page met a similar fate shortly after, cutting off one of Blume's more important communication tools.
"This issue has taken up my entire life for the past few days," said Blume. "Urban homesteading is a national movement that's happening in every state. The Dervaes family are part of that movement and have done their part to popularize it. But so have many many others. I disagree with ownership of a common use term that belongs to a popular progressive movement. And as long as our projects are distinguishable, why should we not all get to popularize urban homesteading which is a wonderful lifestyle and could save the world."
Lisa Lucas Talbot, co-leader of Slow Food LA and the Regional Governor for Southern California Slow Food USA, talked about Slow Food International's own trademark stance. "It's true that the 'Slow Food' name accompanied by the snail logo is a registered trademark of Slow Food International," said Talbot. "As the organization has grown worldwide, the phrase "slow food" (in lower case) is often associated with it and its principles. If another organization called itself "Slow Food" there would be the potential for consumer confusion, and I suspect Slow Food International -- or one of its national organizations -- would step in. But if the Santa Monica Public Library wants to host a panel discussion on "slow food versus fast food," I don't see Slow Food raising a cry about trademark infringement."
She adds, "I haven't heard objections to Dervaes' registration of "Path to Freedom," "Homegrown Revolution," or "Little Homestead in the City." In contrast, "urban homestead" and "urban homesteading" have acquired a much broader and more generic meaning, and many people see the registration of these phrases as an attempt to co-opt a movement."
There's a new Take back Urban Homestead-ing(s) page on Facebook, which had been a bit easier to reach than the Dervaes family website (the last several attempts have timed out due to traffic). As of this morning, the new Facebook page was topping well over 800 "likes" and was populated with thoughtful commentary, outright disbelief, anger, and an activist tone that would be expected from a national progressive sustainability movement.
Anger, resentment, and confusion aside, according to recent -- and now deleted -- tweets by Anais, the Dervaes family has received "death threats," over this issue which if true, would actually be more vile than any controversial trademark issues, pending or otherwise. But it's clear that whatever public goodwill the Dervaes family had nurtured along in their quest to tell their own story of sustainable living in the city has pretty much evaporated. In fact, their unapologetic stance and repeated attempts to justify their actions (in part by pointing the finger at other bloggers and magazines) has only fanned the controversy into a fully-fledged old school Internet conflagration.
Facebook's Copyright Policy can be reviewed here.
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