Market Farming

[Hugh Lovel <uai AT alltel.net>]

*****

June 13, 2000

Greg Willis, President
AGRI-SYNTHESIS, INC.
P. O. Box 10007
Napa, California 94581

Hugh Courtney, President
JOSEPHINE PORTER INSTITUTE FOR APPLIED BIODYNAMICS, INC.
P. O. Box 133
Woolwine, Virginia 24185

Chuck Beedy, President
BIO-DYNAMIC FARMING AND GARDENING ASSOCIATION, INC.
P. O. Box 29125
San Francisco, California 94129-0135

Anne Mendenhall, Director
DEMETER ASSOCIATION, INC.
Britt Road
Aurora, New York 13026

Robert M. Gamson
LEONARD BLOOM & ASSOCIATES, LLC
401 Washington Avenue, Suite 905
Towson, Maryland, 21204

Dear Greg, et. al.,

        As per your fax for my review of Robert Gamson's proposed Consent
Agreement in regards to the Agri-Synthesis application for registration of
the mark BD Preps: Certainly I am an interested party though I do not think
of myself as on the side of either Agri-Synthesis or the opposition of JPI,
the BDA and Demeter. As I see it there are no either/or sides. But as
someone who uses and intends to use the term BD Preps innovatively and
creatively in commerce I am understandably concerned.

        I do not see how this proposal could represent a meeting of the
minds of all concerned. There has been next to no discussion between the
parties. The real motivations leading to the present circumstances remain
buried and unresolved. And, of course, other interested parties, such as
myself, have been left out. Moreover this proposed agreement, rather than
representing progress toward common goals shared by all concerned, actually
obstructs progress and limits options for all parties.

        Since these common goals, as well as the misunderstandings that
have accumulated along the way, can hardly be evident from glancing at the
documents circulated heretofore I believe a review would elucidate things.
At present I imagine all parties (including myself) share a keenly wary
stance. Surely this is positive if joined with a committment to mutual
respect and understanding as well as a heartfelt desire to see biodynamic
agriculture succeed.

BAREBONES REVIEW

        At the beginning is the fact that the Demeter Association obtained
approval of the mark Biodynamic. This is not the same as Demeter Certified
Biodynamic, which is a mark the Demeter Association also obtained. With the
mark Biodynamic, the Demeter Association becomes the agency of approval (or
disapproval) of the use of the term at least insofar as it is applied to
agriculture. I believe makers of biodynamic tennis shoes fall into a
different category where Demeter's possession of this mark does not apply.

        Greg Willis, protested Demeter having this mark as he was working
with wine growers via his company, AgriSynthesis, on biodynamic
certification independent from Demeter--conceiveably in competition to
Demeter. If Demeter were to object in the midst of growers using the term
biodynamic as well as AgriSynthesis Certified Biodynamic on their products
Greg could be caught out on a limb. It is not reassuring that he felt
insecure as regards the present leadership of Demeter, but let us consider.
I myself feel Anne Mendenhall would not have been inclined at the time to
object to Greg's or his growers' use of the term biodynamic. After all, it
would have opened a big can of wormy litigation and nastiness, and I lean
toward thinking Anne would never do this. Fine. But that's no reassurance
because one day--who knows how soon--someone else will take Anne's place
and everyone knows the old adage about absolute power corrupting
absolutely. So even though currently Demeter might not rein in innovators
with biodynamic programs other than Demeter's as long as Demeter keeps this
mark to themselves it is bound to have a chilling effect on the spread of
biodynamic agriculture in any form other than that expressly approved by
Demeter. I can say this as I myself practice biodynamics in ways not
approved by Demeter and have myself felt this chill.

        In riposte Greg applied for registration of the mark BD Preps, to
which JPI, the BDA and Demeter have all objected. Back at the end of
December this objection reached my attention as Demeter actually used their
possession of the mark Biodynamic in a threatening way against Greg,
presumably to get Greg to yield on his application for registering the mark
BD Preps. There was considerable discussion throughout our rather loosly
knit biodynamic community in regard to this and the implications of
trademarking a generic term such as Biodynamic as well as BD Preps. The
idea that these terms might be trademarked but then placed in the public
domain was discussed and at that time, acting as a go-between, I had Greg's
verbal committment to trademark BD Preps with an affidavit attached placing
it immediately in the public domain. In sounding Hugh Courtney out on this,
however, Hugh expressed disbelief that the mark could be put in the public
domain and as far as I know no further discussion of this option occurred.

        Nevertheless, after what I felt was sufficient public discussion to
show trademarking Biodynamics was a serious matter that concerned everyone
in biodynamics no matter their leaf or stripe I left this matter at Anne
Mendenhall's door with the--I hoped compelling--request that Demeter place
their mark Biodynamic in the public domain. On this point I have received
no response from Anne whatsoever. She may think the matter is at rest,
although there is no basis for such an assumption.

        The proposed Consent Agreement that brings things to this juncture
represents demands on the part of JPI, the BDA and Demeter from Greg but no
encouragement. That could hardly be more unsatisfactory. There must be at
least the pledge on the part of Demeter to place their mark Biodynamic in
the public domain if not the actual doing of it, as Demeter's shared
concern with JPI and the BDA over Greg's registration of the mark BD Preps
is the only known leverage Greg has in regards to Demeter. After all, my
attempts at bringing public opinion to bear on Demeter in regards to their
registration of the mark Biodynamic have had no noticable effect. Recourse
to legal objections to Demeter's mark is still an option and, despite the
expense (est. min. $50,000) this may be resorted to if wisdom does not
prevail first.

        I want to make my place in this clear. I'm opposed to Greg's
company, AgriSynthesis--or anyone else for that matter--registering for
itself or themselves the term BD Preps. I favor Greg's registration only on
the condition (which I do not have in writing from him but only have verbal
assurances) that he will append an affadavit placing this term when
registered in the public domain for all of whatever leaf or stripe to use.
However, I must point out that if Greg does this--and he has invited Hugh
Courtney and JPI to join him in this--once the mark BD Preps is registered
in the public domain Greg must look for other leverage to pry Demeter loose
from their position since all he will have accomplished is setting a pretty
example in the face of what appears to be stone determination on the part
of Anne to retain Demeter possession of the mark Biodynamic and NOT place
it in the public domain or even entertain discussion on why it should be so
placed. Rather a sticky wicket and one that provoked me to action.

        Let's not forget that I am concerned and that I use and will use
the term Biodynamic in some ways that may seem too creative for Demeter's
blood. What I did in fact do was advertise my field broadcasters as
biodynamic field broadcasters in my monthly display advertisment in ACRES,
U.S. A. As I recall Anne asked me to please not do this and my response was
that I'd a whole lot rather she use Demeter's mark against me to force me
to desist than for her to use it against Greg since if I had to go through
all the legal machinery with Demeter over this I would at least try to see
that something was left of Demeter at the other end. With Greg I had no
such reassurances, quite the contrary.

        However, Hugh Courtney asked me to desist in advertising the field
broadcasters as biodynamic and argued that the field broadcaster itself was
an inanimate object and could hardly by itself be called biodynamic--no
matter that I wanted all users to know these field broadcasters were
designed to be used for applying BD preps on farms and gardens and little
if anything else. In the interest of setting the example that someone must
be willing to give ground somewhere in this circus I agreed to do as Hugh
requested. So that is the current status of my advertising. Instead of my
ads saying Biodynamic Field Broadcasters they now say Field Broadcasters
for BD Preps.

        Note I didn't use the term Biodynamic but did use the term BD
Preps? I am hoping it sinks in that I must be allowed to use both terms in
my own ways in the future, and this really needs to apply to every other
Tom, Dick and Harry as well. Some clown in this circus is sure to come up
with the notion that because I copy the pattern of the preps onto placebo
tablets to be placed in the field broadcaster's wells as the BD preps that
I am NOT using the actual BD preps in my broadcasters. I'm probably going
to blow that clown off as unworthy of response. If the term BD preps is a
registered mark in the public domain I have that option no matter who
objects. But if the term Biodynamic does not also join BD Preps in the
public domain I will be forced to once again be a big thorn in Demeter's
side in very public ways. It would be correct to think I hardly want to do
that, but incorrect to think that I can't.

        One last issue. What is the point of registering a mark only to put
it in the public domain? Aside from the slight leverage it may have with
Demeter, why shouldn't Greg just drop his application for the term BD
Preps? More than anything this affects Courtney and JPI, and Greg's quarrel
is not with them. Why the big deal about registering it only to place it in
the public domain?

        I want everyone to consider what is happening with the term
Organic. It is widely perceived as generic and beyond anyone registering it
as a mark. Really Biodynamic is such a term also, but interestingly it has
been registered as a mark.

        The USDA is currently usurping control of the term Organic and soon
enough will not let anyone else use it or even use any other term to imply
the same or a higher Organic. Folks who DO NOT want the red tape and DO
want to set a higher standard than the USDA will be looking around for
alternatives. Many will consider doing whatever may be required to become
certified biodynamic. Demeter certified biodynamic? Sure. Some will go that
way though the way may be tedious. AgriSynthesis certified biodynamic?
Absolutely. Some will go that way and it will be more facilitative even
though it will exacting.

        Union Agricultural Institute certified biodynamic? Definitely. You
can bet on it I or those working with me will be certifying biodynamic
growers and crops before too much longer. Lorraine Cahill (who works with
me) and I have long led in radionic application of the preps and no one is
better qualified to certify such. Moreover, Demeter is hardly prepared for
what is coming and as with the present multitude of organic certifiers
there will have to be a multitude of biodynamic certifiers in the future.

        If everyone hasn't thought about this it is time to do so.
Biodynamics is far too big for one organization to wield the term
Biodynamic as their own mark and censure others. It has been growing and is
set to explode in growth while some of its oldest, staunchest supporters
have slept. If the term Biodydnamic is registered in the public domain
along with the term BD Preps, this is a hurdle the USDA may have more
difficulty crossing than they have had with Organic. And they've had enough
trouble with Organic but it looks like they will make it anyway. I'd sure
like to see enough wisdom prevail in the biodynamic movement that we have a
few more stumbling blocks in their way than the naive organic crowd
provided.

        So far all I've heard from JPI, the BDA and Demeter is disbelief
that placing the term Biodynamic or the term BD preps in the public domain
is an option. Greg assures me his lawyer says it is no problem. Courtney
seems to have been advised it cannot be done. No meeting of the minds there
and so far as I can see not much effort to arrive at such a meeting. If I
were Greg I'd agree to no more than an extension of the time limit for
objection opposing his registration of the mark BD Preps IN ORDER THAT
REASONABLE DISCUSSION MAY COMMENCE BETWEEN ALL PARTIES CONCERNED. And by
all parties concerned I mean I want to be included. I'm certainly
concerned, not only personally but on behalf of Union Agricultural
Institute, Inc.

Enough said,



Hugh Lovel, Director
Union Agricultural Institute
8475 Dockery Road
Blairsville, Georgia 30512



****

To the above Anne Mendenhall's response was:

6/17/2000

Hugh Lovel
8475 Dockery Rd
Blairsville, GA 30512

Dear Hugh:

        In your letter you make some reasonable statements, but also
several, I think, inaccurate ones which I feel must be addressed least we
go further astray.

        1)      The statement that Greg Willis protested Demeter having a
certification mark for Biodynamic is incorrect. There was no opposition
during the public comment period. Perhaps you mean to say that he protested
at some other time, in some other venue, after the fact of our registration?

        2)      The statement that "Demeter actually used their possession
of the mark BIODYNAMIC in a threatening way against Greg..." is news to me.

        What good does it do to plead for 'REASONABLE DISCUSSION' and then
lead off with questionable statements? When I read comments like these, it
leaves me feeling not very reasonable. I don't think that is what you want.

        It is not my intention to add any fuel to the fire, but it is my
intention to plead that wse keep communications as clean and accurate as
possible.

        Again, enough.



        Anne Mendenhall

CC: Charles Beedy, A.R. Seidel Esq, Hugh Courtney, Robert Gamson Esq, L. 
Geiger

Britt Road  .  Aurora, NY 13026  .  Phone 315036405617  .  Fax 315-364-5224


****
The following was my response:


6-28-00


Anne Mendenhall
Britt Road
Aurora, NY 13026


Dear Anne,
        Many thanks for your kind response. I always appreciate being
corrected on inaccuracies.
        I believe you are failing to see, however, how very threatening it
is to either Greg or myself that Demeter even HAS a registration of the
mark Biodynamic whether or not it is used with intent to threaten. It is a
generic term that is larger than the limitations of any one agency. There
has to be room for growth in biodynamics or I fear it will never fulfill
its potential. Both he and I need to feel free to use the term and just
because you yourself would never think to threaten either of us with
censure or disapproval--let alone lawsuit--for our use the term is no
assurance concerning the future when you pass on the mantle of your
authority. The existence of this mark in the hands of any but the public
domain is a threat.
        Actually I think it might be rather a good thing the mark
Biodynamic has been registered if this mark is placed in the public domain.
Then it will be one more hurdle for the government to clear if they try to
usurp its use. Can you see that? Don't you see that making Biodynamic
public protects us all?
        I think Greg had a funny way of waking everyone up--applying for a
mark on the term BD Preps. Well, he woke me up because I've long used that
term and intend to continue, just as have many others, Hugh Courtney and
JPI in particular. If we now see the dangers of Greg registering the term
BD Preps then isn't it obvious that Demeter cannot keep the mark Biodynamic
to itself? Please let us remove this toothpick that holds the log-jam in
place. I believe if you discovered the enthusiasm in your heart to do this
it would have a healing effect on all biodynamics.
        And I realize I'm just as funny about waking people up as Greg. My
discussion of this matter back at the turn of the year has been referred to
by some as "The Biodynamic Trademark Wars." Certainly I tried to wake
everyone up. We are at a real crossroads as to whether biodynamics grows or
withers. I'm hoping you see that. I love you. Please forward this and its
attachments. I am not sending this to your lawyer since I don't see how it
is in his interest to see this settled without litigation. However, you may
wish his advice so feel free to forward it to him if you so desire.


        Sincerely,



Hugh Lovel



Attachments: Letter to ACRES, Zip
CC: Charles Beedy, Hugh Courtney, Greg Willis,



****

Finally here is the Document filed by  A.R. Seidel Esq on behalf of the BDA
and Demeter with the United States Patent and Trademark Office:



06-14-2000

UNITED STATES PATENT AND TRADEMARK OFFICE
TRADEMARK TRIAL AND APPEAL BOARD

Applicant:      Agri-Synthesis, Inc.
Mark:           AGRI-SYNTHESIS CERTIFIED BIODYNAMIC
Serial No.:     75/600.230
Filing Date:    December 7, 1998
Publication Date:       May 16, 2000

                REQUEST FOR EXTENSION OF TIME TO OPPOSE

        I represent the following parties who believe they would be damaged
by the registration the above mark on the Principal Register:

Bio-Dynamic Farming and Gardening Association, Inc. a New York corporation
located at Building 1002B, Thoreau Center, The Presidio, P. O. Box 29125,
San Francisco, CA 94129.

Demeter Association, Inc., a Massachusetts corporation located at Britt
Road, Aurora NY 13026

        We hereby request an extension of time for filing opposition to the
above trademark application for an additional 30 days, until July 15, 2000.
This request is being submitted in triplicate.

Respectfully submitted,



Aleen Rothschild-Seidel                 6/14/2000
Attorney at Law                         Date

Law Offices of Aleen Rothschild-Seidel
3201 New Mexico Avenue NW, Suite 350
Washington, DC 20016
Tel. 202-966-9556, Fax 301-365-9583
E-mail: ARSeidel AT CompusServe.com