James Bertini’s most recent Petition to the Director (the second Petition) was DENIED by TTAB (the Board). It is a very detailed response by the Board which explained that just about everything Bertini is alleging against Dervaes and the Board (the “single hearing” issue) is wrong. Bertini doesn’t understand the law. His first Petition was also denied and his case remains suspended. Here is the recent decision.http://ttabvue.uspto.gov/ttabvue/v…
Defendant Dervaes Institute submitted its rebuttal of W&S’s Motion for Summary Judgment at the TTAB cancellation proceeding. In other words, they disputed the “undisputed facts” which W&S submitted to the Board as proof of genericness.
What is even more interesting is Jordanne’s declaration submitted with DI’s opposition. In it she states the following points (read the entire declaration online for more details):
1. Kelly Coyne and Erik Knutzen came to the Dervaes home for a tour in 2006. The Dervaes took their picture and Erik and Kelly admitted in court papers that they did tour the Dervaes homestead.
2. Process Media (“PM”) (Parfrey) asked the Dervaes to write a book first. When they refused, PM asked Erik and Kelly to write a book. The book was titled The Urban Homestead. They also admitted during this proceeding that agents of Process Media viewed the Dervaes Path to Freedom website. Copyrighted material from Dervaes was used without authorization.
3. Parfrey also stated that “Urban Homestead” was with attorneys for trademark registration for a TV show in 2008 (and not by the Dervaes as, according to Jules Dervaes’ declaration, this was before their attempt to trademark it!). see Blogger: Dustpan Alley (OLD) – https://www.blogger.com/comment.g?blogID=20487305&postID=7773681666882712811&isPopup=true Parfrey’s comment:
Anonymous Anonymous said… I think your project sounds great, and it’s of great interest to me, as the co-publisher of Kelly Coyne and Erik Knutzen’s fabulous book, “The Urban Homestead.” I can confirm that this book’s title is now copyrighted due to what is seen on the copyright page. As you might know, titles are not the domain of copyright. At this time, “Urban Homestead,” since it’s now in development for a television show, is currently with attorneys for a trademark registration. [bolding mine] A trademark can generally be obtained for a business with multiple uses of the name in question. In any case, that has to do with “Urban Homestead” and not the other variations you’re discussing. I look forward to reading your publication, and you can see Erik and Kelly’s work here: http://www.realitysandwich.com/blog/homegrown_revolution and here: http://www.processmediainc.com and here: http://www.homegrownevolution.com/ All my best wishes, Adam Parfrey Feral House / Process Media
4. The declaration of Jordanne docket entry #93 also gives insight into the harassment that the Dervaes went through–threats to life and property, attacks on the website, police and FBI reports.
Why, in 2011, did Parfey of Process Media who previously said the term was with attorneys for trademarking (see dustpan alley above) make this remark on TBUH :
Adam Parfrey We appreciate the Dervaes, as did many, from their Oprah period, but we don’t appreciate them attempting to ruin people’s livelihoods and dictating to many that they are not allowed to use a more than century-old generic term, and one used widely long before the Dervaes ever did, without placing a registration notice on it and linking this use of generic language to a specific website. Is this Monsanto? Perhaps not, but it’s wielding and misusing trademark and patent law to harm the lives of others. We fully support April and her Facebook page here!
My comment: Apparently, it wasn’t considered “more than a century-old generic term, and one used widely” when those attorneys were trying to trademark it before the Dervaes! It astounds me that he can say such things when the Dervaes are the ones that originally used the term in a trademark manner before anyone else did (see court papers at TTAB for an explanation) proving that Erik and Kelly are imitators and copycats. Court papers also prove that the Dervaes did not try to ruin anyone’s livelihood but were protecting their hard work from others who were using the term without legal permission thereby trying to live off the Dervaes’ brand name and cause confusion in the marketplace. To understand all this better, also read papers in the Denver Federal court case as well as trademark law. The question is: Who is really hurting/ruining whom?
Of special interest is the declaration of Jules Dervaes docket entry #94 which should be read in its entirety. A declaration is done under oath and penalty of perjury. Here is Jules Dervaes’ statement regarding his reasons for trademarking the terms:
26. As a non-profit, Registrant was not formed to make money but to provide educational and entertainment services about a one-of-a-kind plan to save the environment. The combined intellectual property that I created was so unique that it attracted a significant amount of unsolicited attention from major media outlets, both in the United States and abroad. In April 2009, a milestone of Registrant being invited to be featured on OPRAH’s Earth Day Special demonstrated the singular nature of our work. See Exhibit F attached hereto.
Also see #5 of his declaration which states [paraphrased] that after he had heard about Parfrey’s wanting to trademark the term, Dervaes went to his attorney to have him do it for Dervaes Institute because he had been using the term continuously since circa 2002, along with the ten elements.
I will let the articles and comments speak for themselves. I refuse to speculate on agendas and motives of Parfrey, et al, as April Alexander and others do at TAKE BACK URBAN HOMESTEADING who, without any proof of their assertions, make de facto pronouncements of knowing the Dervaeses’ hearts and agendas! I will say that the TBUH campaign was conducted in a very shabby, sleazy and defamatory manner and not in the classy way that Oak Park Hates Veggies and the Fire Cider controversy have been handled. [Correction and public apology about my Fire Cider comment here] There, the organizers admonished against personal attacks and unsupported statements. While they disagreed with the actions of those whom they were opposing, they frowned upon and resisted ad hominem attacks. The TBUH campaign and those involved in such a hateful manner have been a detriment and embarrassment to the community of homesteaders. They have only diminished themselves and their cause. Now, the proof and truth are now publicly known for all to see here. Anyone from this point on who insists that the Dervaes’ agenda/motives are anything else, such as money or greed, etc., without corresponding proof and their willingness to declare such under penalty of perjury is lying and could face legal consequences.
There is more to tell about what has been found in the court papers–the true, complete story and not the online false/fictional information– but I’ll save that for later. More on the backstory here
Read it here, especially # 64 for details. Number 65 awards court costs to Dervaes. Click on the numbers to read full orders/see details from Judge Blackburn.
TTAB has just resumed its proceedings, de-consolidating the two cases and suspending Mr. Bertini’s case until after the W&S case is decided (due to the fact that he has delayed the case moving forward by his failure to consult with the lead attorney). In addition, it granted,in part, DI’s motion to dismiss fraud charges.The ruling was made by three judges.
Denver’s co-petitioner, Winston Strawn, attorney for Erik Knutzen and Kelly Coyne, filed its responses today at TTAB regarding Bertini’s Petition to the Director. Winston Strawn does not agree with James Bertini’s legal position regarding the Petition to the Director and a single hearing for a mark on the supplemental register. They disagree with it just as the DI attorneys don’t agree with it.
In addition, Winston Strawn states it will file a separate motion for summary judgment should Denver not agree to submit one brief as the Board has stated should be done in a consolidated proceeding. Both James Bertini and Winston Strawn are trying to cancel the DI trademarks.
Not even James Bertini/Denver Urban Homesteading’s co-petitioners support Denver’s legal premises.
Read it here:
Many people have accused Dervaes Institute of trademarking the movement or the idea behind Urban Homesteading. That is false info on the net. Here is the truth. Also, note that Rodale trademarked the term “Organic Gardening” during the height of the organic gardening movement. He attached the term to his Magazine (goods or service). The DI have attached the term to class 41 (website, blogs, educational services, etc.)
Q. Can you trademark an idea?
I didn’t think you could but people are saying OWS trademarked an idea and a movement. Is it possible to trademark an idea or a movement?
A. (4 attorneys basically said the same thing–NO. Here are two excerpts)
1.You cannot trademark or copyright an idea. If you put a name on an idea and attach that name to a product or service, names on products or services can be trademarked (or obtain a service mark.)
2. It depends on how you define “idea,” but generally speaking, trademark protection is not available for abstract concepts that are not connected with the sale of goods or services. That is because trademarks are used in commerce as source-identifiers. That is, trademarks are words, phrases, symbols, designs, or combinations thereof, which identify and distinguish the source of the goods or services of one seller from those of others. In other words, trademarks help consumers identify where (i.e. from what company or merchant) the product or service is coming from.
Thus, the people attempting to register the phrase “Occupy Wall Street” cannot simply register the “idea” of Occupy Wall Street. Rather they are required to provide the U.S. Patent and Trademark Office with an identification of goods. That is, they have to tell the folks at the PTO which products and/or services they are offering or intend to offer under the mark “Occupy Wall Street.”
Bertini’s Petition to the the Director is DENIED at TTAB http://ttabvue.uspto.gov/ttabvue/v?pno=92053837&pty=CAN&eno=72 undefined However, Bertini is still trying to convince the Director at TTAB/USPTO otherwise! But the law is the law.