What is urban homesteading?
As a lawyer I’m always interested when gardening and law collide. That sounds violent! But in this situation I’ve read about, its far more sad than any other adjective. Last week the Federal Courts ruled that the use of the words Urban Homesteading should not have been trademarked. To me, that was such an obvious ruling that learning of the lengths the plaintiffs had to go to get their ruling makes me sad.
So here’s the story as best as I can figure it out…
The Dervaes family had some notoriety regarding their 66 x 132 foot home in Pasadena, California and their use of homesteading techniques. Jules Dervaes, the dad, sounds like a child of the 60’s and a free spirit. It took a while to settle down in one place, taking his family to live in New Zealand and Florida before landing in California. To quote their website:
The journey is ongoing—and we are by no means finished—but we are grateful to have come this far. In 2001, with the success of our Urban Homestead model, we named our homegrown family-run organization the “Path to Freedom” and created this Urban Homesteading website.
They grow 7000 pounds of vegetables on their property, eating it themselves and selling a portion with their own CSA. Their website was a bit out dated with multiple broken links (I couldn’t look at their CSA as their site was suspended per the link) and few helpful articles, but its also clear they are a do-it-yourself kind of group. (note: It looks like they have updated their website just after the court ruling). They have a active Facebook page and through there I found that they offer workshops on preserving, crafts, and music events.
The description of their home sounds like that of many others. In fact, my parents did it in the 70’s to a degree on their urban space. We raised just a few animals for slaughter each year, always had chickens for eggs, canned all sorts of food, and probably would have grown more food had we not lived in Arizona.
The difference seems to be that the Devease’s taught others and did it in the middle of Los Angeles County. The other difference would be that they filed a document with the US Trademark Office purportedly giving them the right to the term Urban Homesteading. And then they actively sought to protect that term in 2011 by sending cease and desist letters to various businesses, farmers markets, and websites or blogs that used that phrase. Sending a letter to Facebook regarding a farmers market in Denver resulted in Facebook removing their page and the link to all their customers.
Litigation is too expensive for most to engage in
What makes me sad is my understanding of how difficult it is to litigate against a cease and desist letter like this. It sounds like Facebook, simply erased the web page without notice to the market. And then dealing with multiple states is always difficult and financially prohibitive for most. Fortunately, the owner of the Denver Farmers Market owner was a retired general practice lawyer. But at the same time, I feel for this man, because although he was a lawyer I’m fairly certain it was not easy for him to deal with trademark issues and federal court in another state. But it would have been financially impossible for any other small farmers market to have done what they did.
From a legal standpoint what I found interesting is that the Devease’s had a trademark in the supplemental registry, not the normal principal registry. This is important because it appears that they tried to get a principal. He principal was denied in 2008 by the US Patent and Trademark Office after it was determined that the words urban homesteading were simply describing what the Dervaes’s were doing. However they were allowed to have a mark in the supplemental registry.
Supplementals seem to be used when the words are more generic but could be transformed into something more specific after its use for a while. In general, generic terms do not get trademark protection because they embrace an entire class of products. The example I came across was that of Dominoes. Prior to Dominoes Pizza becoming known for their pizza they might have been on the supplemental registry simply as Dominoes because that word was commonly known to mean generic domino pieces of the game. Until they could show they were using it openly as a name for the pizza company and then it could be transferred to the principal registry which gives the holder a lot more ability and power to defend the terms.
Urban Homesteading is a movement or lifestyle, not something that can be trademarked
The Court concluded in their November 9, 2015 decision that the term “urban homesteading” answers the question “What are you?” rather than “Who are you?” The Court looked at a number of interesting things to come to this conclusion. They found the generic terms was historically used in the media, including Mother Earth News who had been in publication since at least 1976. Amazon has an entire section for books under the umbrella term of urban homesteading. Radio and TV use the phrase for entertainment. Other educational competitors use the phrase and they found it was more of a movement and lifestyle reference. And even the Dervaie Institute used the phrase in their own website in a generic fashion.
What do I draw from this?
First, I draw a suspicion that the governmental process did not work right. Someone somewhere in the government should have used their brain or done some research to make a common sense decision not to grant this trademark. I also am reading between the lines of the procedural history of the case and think that perhaps there have been so many budget cuts to the Trademark Office that their own rules were not followed. It sounds to me like the Farmers Market should have been able to contest the trademark within the Trademark Office and although I read that they tried, they didn’t get anywhere. This could very well be that the lawyer for the Farmers Market (the owner I believe) wasn’t a trademark lawyer and the process of contesting the trademark within the government was too complex. Which is sad because if a general practice lawyer has a hard time, I will guarantee you the general citizen will have an even harder time.
I also have personally seen so many cuts in general government that leave important areas unfunded. We all want the rights and we want government to work right but we haven’t been willing to pay the taxes to fund a comprehensive government.
And lastly, I guess this all presumes our government should be in the business of issuing trademarks on every little concept someones wants trademarked. Perhaps there should be some threshold one needs to meet to show the proposed trademark is necessary to conduct their business or it has been used used in a real business for a period of time, not just someone who wants to name a website and pretend to have a legitimate profitable business.
All in all, I dont know that the Dervaes family lost much as they can continue to use the same words they were using in the same manner. It cost the Farmers Market a lot of time, money, and energy even though they were the winner. Doesn’t seem fair does it?