It turns out to be rather simple: Trademark a common phrase that is primarily used by freethinking radicals. OK. It won’t be your page, but if you want to galvanize a movement and you are willing to be the common enemy, this could be an effective strategy.
There is a disturbance in the force today regarding the use of the phrase “Urban Homesteading.” It has been trademarked by one of the many people who have been using it in the recent decades, and he has issued letters to the other members of the movement telling them to figure out other ways to describe their activities. First there was boggling, and confusion. Then there was a moment of individual defiance: “Yeah. Try and stop me!” And then there was a Facebook page with a spelling variation, and 1700 (and counting) followers, and a discussion of the relevant trademark law and a question of how to reclaim the use of the phrase. Because in the end, it seems to have shifted from defiance, to resolve. “No, actually. You can’t stop us. This is a movement, not just your business, and you don’t get to call the shots.”
The person in question has been using the phrase online as a blog since the early 2000′s and he has a heavy brand investment in it. However, other people have invested in this concept, phrase, and “brand” (if we must) and have been using it at least since 1980. It is a common phrase among a certain subset of the population, and it is frustrating to see somebody virtually rope off a piece of the commons, slap a license on it, and call it property.
The family that trademarked it didn’t invent the term, and they aren’t using it in way that is distinctive and a significant departure from the movement as a whole. They are snatching a phrase out of the ether and declaring it theirs. It’s not that they haven’t been using it and it’s not that they haven’t been promoting the concept. They have an investment. But they are usurping the work that has been done to promote this idea by an international community of activists. People like Karin Kliewer writing for Wendy Priesnitz’s Natural Living Magazine. And K. Ruby Blume at the Institute of Urban Homesteading, who has been essentially told that she needs a new name for her business. By trademarking the phrase the “owners” were legally entitled to make Facebook take down all the pages that use the words Urban Homesteading, including Blume’s.
So, a brief diversion, because I want to talk about the concept of intellectual property. One stop on my speckled and dodgy career path was two work terms at the Canadian Patent Office, one in Industrial Design and Copyright, and one as a Patent Classifier. I was just a student and this was 20 years ago, so I am not an expert in patent law, the ins and outs thereof, so don’t ask me about case law. I don’t know. Details, shmetails; I want to talk philosophy. Because this disagreement isn’t really about law. Maybe in a twisted application of “first to file” they are legally entitled to do this. If so, the law might be… ahem… an ass. No, this can’t ultimately be about the law, because none of us have the money to reconcile it that way. This is about (shudder) optics.
In our training (Level 1 Patent Examiner, 1990) we had an extensive conversation about the contract between the creator and the public when intellectual property rights were protected. In essence, it was this: We will grant you exclusive rights to benefit from the fruits of your intellectual labour and the means to protect those rights for a limited time through our publicly supported courts. In exchange, having provided the benefit of public protection, after these rights have expired, the material cedes to the public domain. Trademarks, because they don’t expire, need limits around their use, either by locale, product type, or other specifications. You don’t get to have it all, baby. You can’t patent an idea, and you can’t trademark a concept.
It was intended to be a two-way exchange: we protect you, you give back. This feels like the opposite: the public (albeit a small portion thereof) builds a movement, gains mainstream voice, and starts to change the legislation in one municipality after another to allow small scale farming, livestock in cities, and the right to replace their lawns with food gardens. And then one person swoops in and scoops the right to the words, making the rest of us start over to build another set of language in its place.
That is why we are angry. And that is why since I started this post (an hour ago) the Facebook page has another 100 followers. (Edit: Now it has 2400 followers. Wow. It would have taken us years to do this normally. The power of the incensed!)