Back in 2011, I wrote a series of articles about a battle between advocates of urban farming and the Dervaes family of Pasadena. The Dervaeses have received international attention for turning their home into an farming wonderland, but the family at the time was going after anyone and everyone who was using the terms “urban homestead” and “urban homesteading,” which has been widely used since the 1970s but that the Dervaeses had trademarked with the feds. Farmers markets, authors, and jes' plain folks who used “urban homestead” and “urban homesteading” quickly found their Facebook pages taken down due to allegations of copyright infringements, got cease-and-desist letters, and feared more from the Dervaes.
But yesterday in California federal court, U.S. District Judge John F. Walter gave opponents of the Dervaes a partial victory when he cancelled the trademark for “urban homesteading,” saying it was too generic a term to deserve protection.
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The complaint was filed in late 2014 by Denver Urban Homesteading, a farmer's market in Denver whose Facebook page was suspended after a infringement complaint filed by the ex-wife of Jules Dervaes, the family patriarch. The long, twisted history of the legal fight is on their page, and you should go read it. Here, let's focus on the judgement.
In the ruling, Judge Walter noted that the Dervaes argument that they deserved a trademark on “urban homesteading” was based on “primarily irrelevant and erroneous arguments” that flew in the face of decades of widespread use by reporters, activists, and farmers. “The Court
concludes that Defendants' evidence is entirely insufficient to create a genuine issue of material fact that the term 'urban homesteading' is suggestive,” Hizzoner wrote, “especially in light of Plaintiff's evidence that the term was used by others to describe sustainable living, organic foods, gardening, the environment, and conservation as early as 1976 and that Defendants themselves have used the term in the generic sense.”
“No small business should have to go through five years of litigation to cancel a trademark that shouldn't exist,” said attorney James Bertini, a Denver Urban Homesteading lawyer, in a press release. “A small business cannot afford this burden.” He is now going to seek damages, as the farmer's market had to close during the legal fight.
Still up in the docket: another fight against the Dervaes clan over use of the term “urban homestead,” this one brought forth by the publishers and authors of The Urban Homestead: Your Guide to Self-Sufficient Living in the Heart of the City . That one's being fought before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office, and the case was suspended pending the outcome of the Denver Urban Homesteading case. But an Oct. 19 board filing stated, “Therefore, in interests of judicial economy and avoiding the possibility of inconsistent decisions on the pending motions for summary judgment, the Board finds that the motion for summary judgment in the California case should be decided first” and that a finding for Denver “would be binding on the board.”
More–much more–to come…
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