permaculture

[Pacific Edge Permaculture + Media <pacedge@magna.com.au>]

The following content is offered only as a contribution to the discussion of
the trademark issue in the global permaculture community. I am not a lawyer
and  the following content in no way represents legal advice....

On 10 July Robyn Francis wrote:
 
> It was brought to my attention today that XAF Pty Ltd (trustee company for 
> The
> Permaculture Institute), applicants Bill mollison & Lisa Mollison lodged
> applications to trade mark the following:
> 
> Trade Mark 877106 PERMACULTURE DESIGN COURSE lodged 28 May 2001
> 
> Trade Mark 877449 PERMACULTURE DESIGN lodged 30 May 2001
> 
(full text of Robyn's email at end).

WHAT IS THE ISSUE FOR PERMACULTURE GRADUATES, DESIGNERS AND EDUCATORS?
The issue is that, if the trademark application is successful, the word
combinations 'permaculture design course' and 'permaculture design' will
effectively be privatised. They will become the exclusive property of XAF
Pty Ltd, the trustee company of the Permaculture Institute.

To quote the advice of Intellectual Property Australia, the national
organisation administering and granting trademarks:

"A trade mark can be a word, phrase, letter, number, sound, smell, shape,
logo, picture, aspect of packaging or a combination of these. It is used to
distinguish the goods and services of one trader from those of another.

"A registered trade mark gives you the exclusive legal right to use, license
or sell it within Australia for the goods and services for which it is
registered".


WHO COULD BE AFFECTED?
Going by the above definition, trademarking could have a far-reaching and
substantial impact on:

- permaculture teachers
- permaculture advocates - those promoting permaculture design
- pemaculture designers
- permaculture authors
- others who make use the words 'permaculture design course' or
'permaculture design'.

They could find that they may no longer make use of the words without
permission from XAF p/l.


IMPLICATIONS
Robyn Francis states:

> In light of the changes in Pc Institute's policies over the past year
> this is somewhat disconcerting as the only people who would receive
> permission to use these words would be those personally approved by Lisa
> and Bill.

A successful trademark application could change the practice of permaculture
in Australia and in other countries in which the trademark is registered.

1) Trademarking could give XAF p/l control over who teaches permaculture as
the company would have exclusive rights to use of the words 'permaculture
design course'.

2) For the reasons in 1) above, only XAF p/l could determine the content of
a permaculture design course.

3) Trademarking the words 'permaculture  design' effectively hands to XAF
p/l and the Permaculture Institute the right to define what permaculture
design is. 

A single or a restricted range of definitions could then be legally defined
by the trademark holder, taking away from present and future permaculture
practitioners the right to coin their own definitions of permaculture and
potentially restricting the capacity of permaculture design to adapt to
changing social. environmental or developmental circumstances.

4) XAF p/l could licence out use of the trademarked terms and would have the
right to charge a licencing fee for doing so. According to the Trade Marks
Act 1995, Section 20:

"Rights given by registration of trade mark

"1) If a trade mark is registered, the registered owner of the trade mark
has, subject to this Part, the exclusive rights:

"(a) to use the trade mark; and

"(b) to authorise other persons to use the trade mark; in relation to the
goods and/or services in respect of which the trade mark is registered.

"Note 3: In addition, the regulations may provide for the effect of a
protected international trade mark: see Part 17A".

The question then becomes how many permaculture teachers would be prepared
to pay a fee to the Institute or XAF p/l and, were they to charge a fee, how
much would they demand for use of the trademarked words?

Would XAF provide a free licence and would it be granted only to those
complying with the Institute's PDC content rules, effectively squeezing
non-compliers from pemaculture teaching and use of the term 'permaculture
design'?


OPPOSTITION TO THE TRADEMARKING
Intellectual Property Australia states:

"It is difficult to register. . . a trade mark that describes your goods
(eg. radios) and services (eg. electrician).

"It must not be a sign that other traders may wish to use to promote or
describe their goods and services, nor can it mislead the public about the
nature of your goods and services".

Elsewhere, Intellectual Property states: "Your trade mark must distinguish
your goods or services from others in the marketplace. For this reason, you
will find it very difficult to register trade marks that:

*    denote the kind, quality, intended purpose or value of the goods or
services; 
*    are common surnames or geographical names; or
*    conflict with an earlier trade mark, or would mislead the public about
the nature of the goods or services".

In relations to the second paragraph of the above quote, it seems that
people wishing to retain access to use of the words up for trademarking
without paying a possible licencing fee may be able to register a notice of
opposition to the trademark attempt because the words 'permaculture design'
and 'permaculture design course' may constitute "a sign that other traders
may wish to use to promote or describe their goods and services".
 
There may be other options to oppose were an analysis of the legisaltion to
be made.


COMMENTARY
1) The application for trademarking could be seen as an escalation of a
recent policy change, not initially notified to permaculture stakeholders by
the Permaculture Institute - nor was any attempt at consultation seemingly
made by the Institute -  when it imposed an approvals regime on what could
be taught in permaculture courses.

- when teachers applied to the Institute for certificates for their
permaculture design courses (PDC) they were asked for details of their own
PDC to verify if they complied with the practice of only PDC graduates
having the right to teach PDCs; it is disputable whether this has any
reality in law

- their course structure was then tested against a checklist held by the
Permaculture Institute to assess whether it contained all the content of
Bill Mollison's book "Permaculture - a Designer's Manual"; presumably,
teachers not complying did not get certificates; the effect of this could be
to limit permaculture course content and to prevent adaptation of the course
for urban areas or for communities in developing countries where some of the
content as insisted upon by the Institute may not be relevant

- the Institute said that the policy change could not be notified to the
permaculture community because of the closure of the Permaculture
International Journal; this claim was spurious because there existed at the
time a permaculture email distribution list and the Institute itself held a
mailing list of permaculture practitioners - the evidence for this was the
last Xmas booklist mailout by the Institute; in addition, it has been a
practice of permaculture teachers to send to the Institute lists of their
PDC graduates - these could have been used as a mailing list notifying the
policy changes in the granting of supplies of certificates.


2) Toby Hemenway, a long-time and well known permaculture practitioner in
the USA, wrote in regard to the Institute's course approval regime and the
news about the trademark applications:

"...due to the seemingly capricious nature of the Mollisons' recent choices
as to who receives their approval, and their misguided attempts, due to
ignorance of copyright law, to block others from writing about permaculture,
this seems a very bad development...".

He may be right about 'misguided' attempts by the Institute to use copyright
law to restrict public use of the word 'permaculture' - ideas cannot be
copyrighted and, as an idea, permaculture cannot therefore be copyrighted.

Whether the Institute directors really believed that copyright law offered
protection or whether their alluding to it was merely bluff (and therefore
an attempt to deceive the permaculture community) remains unknown.


3) The motivaation of XAF p/l remains unclear, however this is an issue for
all stakehlders in the permaculture design system.

People are invited, therefore, to participate in an open discussion of the
issue through the permaculture-oceania and the US-based listservs.

> From: <permed@nor.com.au>
> Date: Tue, 10 Jul 01 15:24:22 -0000

> To: "oceania" <permaculture-oceania@explode.unsw.edu.au>
> Subject: Re: permaculture trademark alert
> 
> Just to let you know...
> 
> It was brought to my attention today that XAF Pty Ltd (trustee company
> for The Permaculture Institute), applicants Bill mollison & Lisa Mollison
> lodged applications to trade mark the following:
> 
> Trade Mark 877106
> PERMACULTURE DESIGN COURSE
> lodged 28 May 2001
> 
> and
> 
> Trade Mark 877449
> PERMACULTURE DESIGN
> lodged 30 May 2001
> 
> In light of the changes in Pc Institute's policies over the past year
> this is somewhat disconcerting as the only people who would receive
> permission to use these words would be those personally approved by Lisa
> and Bill.
> This is a far cry from the long-held policy of the institute that all PDC
> holders have the right to teach & design and use the word Permaculture in
> their work.
> There is opportunity to lodge objections but I do not know when the
> deadline is.
> The application is for Australia - it may be worth checking if a similar
> application has been lodged elsewhere e.g. USA
> 
> regards
> Robyn Francis
> 
> Djanbung Gardens Permaculture Education Centre
> home to: 
> Permaculture Education
> ERDA Institute Trust
> Nimbin Eco-Village Project Office
> Robyn Francis - permaculture designer & educator
> PO Box 379, Nimbin NSW 2480 Australia
> Ph 02-6689 1755 Fax 02-6689 1225
> permed@nor.com.au  www.earthwise.org.au



> From: Toby Hemenway <hemenway@jeffnet.org>
> Reply-To: "permaculture" <permaculture@franklin.oit.unc.edu>
> Date: Tue, 10 Jul 2001 11:36:19 -0700
> To: "permaculture" <permaculture@franklin.oit.unc.edu>
> Subject: Re: permaculture trademark alert
> 
> due to the seemingly capricious nature of the Mollisons' recent choices as
> to who receives their approval,  and their misguided attempts, due to
> ignorance of copyright law, to block others from writing about permaculture,
> this seems a very bad development