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Can ‘Passive House’ Be Trademarked?

It appears that builders of passive solar homes can still use the phrase ‘passive house’ in their marketing materials

Posted on Apr 29 2011 by Martin Holladay, GBA Advisor

The Passivhaus logo is trademarked. The owner of the trademark on this logo is Wolfgang Feist.

UPDATED on 4/3/2012

Can the phrase “passive house” be trademarked? If the answer is yes, has any organization claimed the trademark yet?

I decided to research these questions after I noticed a comment posted by Nils Davis on the Web site of the Silicon Valley Passive Building Coalition: “Passive House is a trademark of the Passive House Institute U.S.” That sentence made me sit up and pay attention — after all, if the phrase “passive house” is trademarked, it might be hard for builders of traditional passive solar homes to use the phrase in their marketing materials.

I e-mailed Davis for more information. He responded, “At the time I wrote that I had been informed by Katrin Klingenberg (in a March 2009 e-mail) that the PHIUS had applied for trademark protection for Passive House and several associated terms.”

A rush to the trademark office

Clearly, interest in trademarks is heating up in the Passivhaus community. The following advice was posted by C.A. Snyder on the Web site of the Michigan Energy Efficiency Network: “If you are interested in what Certified Passive Houses offer, protect your interests by looking for the trademarked logo and phrase ‘Certified Passive House.’ ”

The Web site of a Wisconsin newspaper, the Hudson Star-Observer, reported that “The term passive house is the trademark name for a type of German-engineered building that is so well-insulated and air-tight it is warmed mostly by the sun.”

Someone posting on an Irish energy-advice Web site claimed that “‘Passive House’ is a trademark held by the Passivhaus Institute of Darmstadt, Germany.” Hmm, I wondered — could that be true? Does anyone own the phrase “passive house”?

What does the U.S. Trademark Office say?

Although it’s hard to do a thorough trademark search without investing a fair amount of money, it’s possible to do a preliminary search at a Web site maintained by the U.S. Patent and Trademark Office. According to my research:

Wolfgang Feist has trademarked the phrase “Passive House Institute.”
Wolfgang Feist has trademarked the initials “PHPP.”
Katrin Klingenberg and Mike Kernagis filed papers to trademark the phrase “Certified Passive House.”
Katrin Klingenberg and Mike Kernagis filed papers to trademark the phrase “Passive House Institute U.S.”
Katrin Klingenberg has trademarked the phrase “Passivhaus Bau.”

To the best of my knowledge, no one has yet succeeded in obtaining a trademark on the word “Passivhaus” or the phrase “passive house.”

(Update: On April 2, 2012, when she was in the midst of a debate over whether PHIUS has the right to redefine the Passivhaus standard, Katrin Klingenberg clarified her position: “The term passive house was coined in the U.S. and Canada in the ’70s,” wrote Klingenberg in a comment posted on the Inhabit website. “It has been used in the building science discourse ever since. It is solidly in the public domain and describes a building science principle free for everyone to use.”)

The bottom line

Until a lawyer steps forward to contradict me, I think it’s safe to say that it is perfectly legal for builders of traditional passive solar homes to continue using the phrase “passive house” in their marketing materials. That's reassuring.

I’m guessing that any future efforts to trademark the phrase “passive house” will prove difficult, since the phrase was in widespread use for years before the Passivhaus Institut was founded in Germany.

Last week’s blog: “A New Way to Duct HRVs.”

Tags: passive house, Passivhaus

Image Credits:

U.S. Patent and Trademark Office

1.
Fri, 04/29/2011 - 10:15

Orientation
by Doug McEvers

If only we could get builders and designers to acknowledge the sun and the free energy it provides. I see many cold climate homes with few if any windows on the south facade, a sad situation. Daylighting is what makes a home, with the right windows and placement a net energy gain is available.

2.
Fri, 04/29/2011 - 10:17

William Shurcliff's use of the word passive 27 years ago
by Pat Murphy

“Consider the Saskatchewan Energy Conserving Demonstration House. Or consider the Leger House in Pepperell, Mass. They fit none of the … listed categories [of solar houses]. The essence of the new category is:“
1. Truly superb insulation. Not just thick, but clever and thorough. Excellent insulation is provided even at the most difficult places: sills, headers, foundation walls, windows, electric outlet boxes, etc.
“2. Envelope of house is practically airtight. Even on the windiest days the rate of air change is very low.
“3. No provision of extra-large thermal mass. (Down with Trombe walls! Down with water-filled drums and thick concrete floors!)
“4. No provision of extra-large south windows. Use normal number and size of south windows — say 100 square feet.
“5. No conventional furnace. Merely steal a little heat, when and if needed, from the domestic hot water system. Or use a minuscule amount of electrical heating.1
“6. No conventional distribution system for such auxiliary heat. Inject the heat at one spot and let it diffuse throughout the house.
“7. No weird shape of house, no weird architecture.
“8. No big added expense. The costs of the extra insulation and extra care in construction are largely offset by the savings realized from not having huge areas of expensive Thermopane [windows], not having huge well-sealed insulating shutters for huge south windows, and not having a furnace or a big heat distribution system.
“9. The passive solar heating is very modest — almost incidental.
“10. Room humidity remains near 50 percent all winter. No need for humidifiers.
“11. In summer the house stays cool automatically. There is no tendency for the south side to become too hot — because the south window area is small and the windows are shaded by eaves.
“What name should be given to this new system? Superinsulated passive? Super-save passive? Mini-need passive? Micro-load passive? I lean toward ‘micro-load passive.’ Whatever it is called, it has (I predict) a big future.”

3.
Fri, 04/29/2011 - 10:25

Response to Doug McEvers
by Martin Holladay, GBA Advisor

Doug,
You're right. Here's a photo of the south facade of a recently built American house. The photo was published in Kevin Ireton's article, The American House: Where Did We Go Wrong?

4.
Fri, 04/29/2011 - 12:53

Maybe not perfectly legal
by Preston Koerner

You probably already know this, but rights in a trademark are obtained through use in commerce. Meaning no registration with the USPTO is required, though registration provides some significant advantages such as a national presumption of ownership.

In other words, without registration, someone could obtain rights in "Passive House" through commercial use and those rights could be superior to others. There's the TM, SM, and R symbols to let viewers know there's a different kind of claim at stake.

That and there's an honesty issue. If the community comes to recognize "Passive House" and "passive solar house" as two distinct things, which I would argue is currently the case, one would not use these terms interchangeably without risking a misrepresentation claim later on.

Not legal advice, but some thoughts on the topic.

5.
Fri, 04/29/2011 - 12:58

Response to Preston Koerner
by Martin Holladay, GBA Advisor

Preston,
Thanks for your perspective. I'm not a lawyer, so I don't have an opinion on this one. I'm sitting on the sidelines, watching the situation develop.

Of course, if a dispute ever reaches litigation, it will be up to a judge or jury to decide whether the decades of common use of the phrase "passive house" are adequate to keep the phrase in the public domain.

6.
Fri, 04/29/2011 - 14:14

Responce to Martin
by Nathan Spriegel

It could happen. Someone has trademarked "Urban Homesteading", a term used since the 70's! Hopefully anyone who gets the idea to trademark such a commonly used description will learn from that, as the people who trademarked it had a rather large PR problem afterwords. Someones good name is much more important than having a good trademark.

7.
Fri, 04/29/2011 - 14:18

Response to Nathan Spriegel
by Martin Holladay, GBA Advisor

Nathan,
Interesting. A little Googling, and I came up with a TreeHugger article on the Urban Homesteading controversy:
http://www.treehugger.com/files/2011/02/can_you_trademark_urban_homestea...

8.
Sat, 04/30/2011 - 15:33

Edited Sat, 04/30/2011 - 16:20.

not worthy
by Kristen Simmons

Martin,
I have tremendous respect for your knowledge and your ability to communicate it to us so well, but why no quote from Katrin Klingenberg or Wolfgang Feist? Websites and comment board posters are not adequate sources. It seems as if you are suggesting that Klingenberg and Feist have engaged in inappropriate behavior or are just about to.

9.
Sun, 05/01/2011 - 03:47

Response to Kristen Simmons
by Martin Holladay, GBA Advisor

Kristen,
You're right: a comment from Katrin Klingenberg on this question would be very helpful. However, Katrin declined to answer my March 21, 2011 e-mail asking her about the trademark issue.

10.
Wed, 05/25/2011 - 17:19

perfectly legal?
by Dave Brach

Martin,

I'm glad that someone is finally standing up for "builders of traditional passive solar homes." Passive Houses are hogging the spotlight these days!! Also, pointing out that it's "perfectly legal" for anyone to use the phrase "Passive House" for marketing reminds me of how it's perfectly legal to build a house to code : -)

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Can ‘Passive House’ Be Trademarked?