Top 10 Food-Related Lawsuits of 2011

Carmen

To Dave: Those are not my words but those of an IP attorney. I am far from an attorney and don't claim to be. Also, according to him, ttrademark law allows someone to take a descriptive word in common use and make a brand name or trademark.

anonymous

for a particular Goods and Services. They still went after people writing books about urban homesteading, when their goods and services for Urban Homestead and Urban Homesteading trademarks are: 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.

A book is not informal education. It is about as formal as you can get. They still went after them. They also went after Denver Urban Homesteading which is a farmer's market in Denver, Colorado. Again, different goods and services. The Dervaes family said they trademarked the terms so that they could "protect them" from the big bad corporations, but then actively went after *anyone* in their community using the terms, even when it was incorrect because they had different G & S. Which is what big corporations do, they go after anyone even if it is not correct because as soon as you send a legal letter most people don't want to fight you as it costs money they don't have. So the Dervaes are as bad as the corporations that they said they were protecting the terms from. So sad.

anonymous

@ Carmen. Please note that you can have an "urban homestead" cheese, and and "urban homestead" magazine, and they would not be able to sue each other because they would be trademarked for different Goods & Services. You cannot trademark a term for all uses everywhere. You must have a defined Goods & Services. Also you are supposed to have used the term specifically and exclusively in conjunction with your specific goods & services for a certain length of time. Their goods and services were basically informal classes, a website and blogging. None of which they were doing exclusively in the last several years before being granted a TM.

Regardless of the legal situation, they still destroyed their customer base and their brand. No one who is the least bit interested in urban homesteading wants anything to do with them anymore because of their actions. So you can argue that they have the right to the trademark, it just doesn't matter. I don't know anyone in the movement who would buy anything from them now anyway so 100% of zero is still zero.

anonymous

@ Carmen. I do not hate them, I think I and a lot of other people are extremely disappointed in them because they appear to have gone the way of what a lot of us are trying to get away from. If they had trademarked Path To Freedom (which I am sure they have) no one would have cared because they are legitimately linked to that phrase in the minds of the community. At any rate, you are correct that you and I do not have all the answers here, that will have to be worked out by the parties concerned and the USPTO.

But again its a moot point, because they have destroyed their reputation anyway.

Carmen

@anonymous--according to what my friend told me, when I asked the same thing about the goods and services, and the book, he said that the class that the Dervas had was sufficiently related to the book (printed matter I think is what he said but don't hold me to it but nonetheless, he said it was sufficiently related).DU rban Homestead also teaches classes and sells produce. I am not so sure if that urban homestead cheese or magazine would be ok as the family has an online blog and sells its own products and foods but am not sure. You must be careful as should anyone as speaking so definitely when trademark law is not our specialty.I think this is what starts people to make unfounded conclusions simply because we do not know the law. And that is why I searched out answers from my friend so I could understand things better myself and judge the situation properly. Note that the D family are also allowed to use the trademarks now wherever they like and expand the classes I was told by my attorney friend. It was also a common law trademark with rights since about 2000 (I think not sure). Therefore, those that came after are infringing. I know that others may not want to have anything to do with them any more and for the life of me I can't understand that, They have shown us what could be done and shown us what is possible in the city no matter what it is called, A rose by any other name is still the same. They are an inspiration to many of us. As for me, I am disappointed in those who decided to ride the wave of urban homesteading on another's hard work as if they have done something when in my opinion they have not done nearly anything to the extent the D family has. I am surprised by the hate too which is strange to me. It is funny to say that no one in the community would buy anything from them now when the D family as far as I can tell rely on selling produce locally to restaurants and they are usually not homesteaders! They sell other things I think but I don't get the impression they are in it for the money anyway. Like farmers, it is a hard road to travel and not likely to lead to riches. P.S> Why don't you ask a trademark attorney as I did? Don't believe me as I am trying to recall what I was told and could possibly be off here or there. Maybe you should consider the same possibility about your ideas.

Michelez

How sad of the Dervaeses to go from everyone's heroes to being "unliked." what they lost can't be replaced, and we all lost, in fact. Nothing they gained could have been worth it — what were they thinking???

Mitzy

About your report Dervaes :1. The terms are legally registered already at the USPTO so your statement " If the Dervaes family in Pasadena have their way, you would get a trademarked term, owned exclusively by them, that you can not use unless you like to receive threatening cease-and-desist letters from lawyers." is wrong.

2. Since it is a descriptive trademark it can be used by others under FAIR USE doctrine which is not necessary to go into here. It cannot, however, be used "in commerce" by others. Again, this is a very complicated issue. Generally, trademark law protects the TM owner as well as the general public so the TM owner cannot have a monopoly on words

3. TM law makes the TM holder notify others of its TM ownership. A cease and desist letter spells out certain legal aspects of the law and recites that the TM owner reserves the right to take you to court. None of that was in the Dervaes letter. You are believing internet rumors and lies. T M owners must "zealousy" protect the terms.

4. It is not a" lawsuit" but an administrative proceding at the USPTO to see if the trademarks can maintain their FEDERAL REGISTRATION there. If not, they can lbe used as common law trademarks which are quite legal and enforceable. Brand names need NOT be federally registered to be a brand name.

Carmen

Right on, Mitzy! This is poor journalism. You rock, Dervaes!

anonymous

The Dervaes do not rock in any way. What they did was ethically and legally wrong (they shut down businesses who were using the name but not competing with their Goods & Services) so they had no right to damage the business, and the outrage of the urban homesteader community shows that what they did do was effectively "shoot themselves in the foot". They alienated their entire community. I do not think it "rocks". I actually think its very sad. They did a lot for the community, and in one stupid move they destroyed their brand and their good name among the very people that was their customer base.

Mitzy, you need to get your facts straight. I don't disagree with you but you do not have all the details. In effect, the Dervaes stated that they had used it "exclusively" for a certain number of years (which is necessary to trademark) which is clearly false based on the number of people who were using it (including Mother Earth News who used the term back in the 70s). So there is no basis for the trademark to stand.

Dave Lieberman

Carmen, I have a friend who's an astronaut but it doesn't make me an expert on space travel.

They trademarked a term which was already in common use. A trademark is not an absolute, back-to-the-mists-of-history right to exclusive use of a name.

Carmen

Oh brother, anonymous, are you totally wrong. First of all, some of those were definitely competing with the same goods and services and in commerce which definition is defined by trademark law and is very complicated. Secondly, they did use the terms "substantially exclusive" as stated on their application. The word "substantially" is important in trademark law and means that the other uses which are on record were considered by the USPTO as infringing or insubstantial. Thirdly, the use of the word in Mother Earth has nothing to do with it as under trademark law one can co-opt a term for a brand name. I know this because I have a friend who is a tm attorney!