PHIUS Tries to Trademark ‘Certified Passive House Consultant’
Also used by the Passivhaus Institut in Germany, the phrase is now being claimed as a trademark by a rival U.S. organization
UPDATED on 3/29/2012
On January 12, 2012, the Passive HouseA residential building construction standard requiring very low levels of air leakage, very high levels of insulation, and windows with a very low U-factor. Developed in the early 1990s by Bo Adamson and Wolfgang Feist, the standard is now promoted by the Passivhaus Institut in Darmstadt, Germany. To meet the standard, a home must have an infiltration rate no greater than 0.60 AC/H @ 50 pascals, a maximum annual heating energy use of 15 kWh per square meter (4,755 Btu per square foot), a maximum annual cooling energy use of 15 kWh per square meter (1.39 kWh per square foot), and maximum source energy use for all purposes of 120 kWh per square meter (11.1 kWh per square foot). The standard recommends, but does not require, a maximum design heating load of 10 W per square meter and windows with a maximum U-factor of 0.14. The Passivhaus standard was developed for buildings in central and northern Europe; efforts are underway to clarify the best techniques to achieve the standard for buildings in hot climates. Institute U.S. (PHIUS) filed a trademark application for the letters “CPHC,” which stand for “certified passive house consultant.”
The phrase and abbreviation are also used by the Passivhaus Institut in Darmstadt, Germany. In spite of that fact, PHIUS is taking legal steps to prevent any European-affiliated Passivhaus group, including the Passive House Academy of Ireland, from using the initials “CPHC.”
In August 2011, the Passivhaus Institut in Germany severed its relationship with PHIUS. It's now up to the U.S. Trademark Office to determine whether the disowned U.S. offspring of Dr. Feist's institute can seize control of a phrase used by Passivhaus groups around the world.
As GBAGreenBuildingAdvisor.com reported previously, PHIUS sent out an e-mail to many American architects on January 17, 2012, warning recipients that only PHIUS was allowed to use the phrase “certified passive house consultant.”
For more information on the issue of trademarking phrases used by Passivhaus designers and builders, see Can ‘Passive House’ Be Trademarked?
Reacting to the news of PHIUS's attempts to squelch unauthorized utterances of “CPHC,” Gregory Duncan, an architect working in Brooklyn, New York, composed the following tweet: “I wonder if PHIUS will send a cease-and-desist letter to the Canadian Prostate Health Council as well?”
PHIUS sends a threatening letter to New York Passive House
GBA has just learned that on January 18, 2012, PHIUS sent a letter to New York Passive House, a regional Passivhaus organization. The letter stated, “It has come to our attention that New York Passive House has been using PHIUS's e-mail list to solicit business on behalf of Passive House Academy. ... We do not know how you acquired this list, but the e-mail list is one of PHIUS's trade secrets. PHIUS did not authorize you or any other organization to use this list. We demand that you immediately stop using this list. ... If you do not comply with the demands set forth in this letter, we must conclude that you intend to use the confusion created by your trademark infringement to attempt to divert business rather than seeking to develop Passive House Academy's business legitimately.” (To read the entire letter, click on the image below.)
Responding to the cease-and-desist letter, three members of the New York Passive House board (Andreas Benzing, Floris Keverling Buisman, and Ken Levenson) explained, “NYPH has never obtained a PHIUS email list and never used a PHIUS email list - the accusation is fanciful. ... NYPH has built its own list.”
Needless to say, these demands and cease-and-desist letters are keeping several lawyers busy.
New York Passive House responds to PHIUS
On January 26, 2012, a lawyer hired by New York Passive House responded to PHIUS's letter. An announcement from the board was sent to New York Passive House members:
"Dear NYPH Member,
"Earlier this week NYPH received a cease and desist letter from PHIUS attorneys (see here). Yesterday, a letter from Frank Taddeo Jr., the attorney retained by NYPH, was sent back in response (see here). Essentially, the letter has four points/objectives:
"1. Clarify the current status of the alleged trademarks: there are no trademarks existing, contrary to PHIUS assertions.
"2. State unequivocally that NYPH has never used a PHIUS email list and that the accusation is baseless.
"3. To be clear that NYPH is no way in competition with PHIUS nor an agent of any entity in competition with PHIUS.
"4. Given the above three points, any further action against NYPH by PHIUS will be frivolous.
"With this most unpleasant exchange behind us, the NYPH board and membership will redouble our efforts toward building a strong and transparent Passive House community, based on a shared interest in building science, Passive House building specifically, and open knowledge sharing for the benefit of all.
Floris Keverling Buisman
The Passive House Academy ignores PHIUS's cease-and-desist request
Ignoring PHIUS's threats, the Passive House Academy was still using the term “certified passive house consultant” in its advertising in late March 2012.
Jan 26, 2012 8:01 PM ET
Jan 26, 2012 8:38 PM ET