Trademarked plant names

jacqueinthegorge(USDA 8 / Sunset 5)August 8, 2013

Hi folks, posted this to the Hybridizing forum a few days ago, but have received no replies. So I'm cross-posting here.

Can the same hybrid have more than one trademarked name?

For instance, I have a hybrid Hydrangea, trademark Shooting Star, but when I look at photos, it looks just like trademarked Hydrangea Fireworks, and at least one web site says they are the same. How does that happen?

I am growing two Fuchsias that look exactly the same to me. One is called Blacky, the other is called Roho's King.

And I have some Dahlias where the same situation seems to apply. Darned if I can see the difference between Wink and another (whose name escapes me right this second, and the plants are not available for me to check the labels).

My guess is that more than one licensed propagator is selling each plant, but I'm wondering why they would sell them under different names.

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Tiffany, purpleinopp GardenWeb, Z8b Opp, AL

So people who collect names will want one of each.

    Bookmark   August 8, 2013 at 3:42PM
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love_the_yard(z9A Jax FL)

Maybe... but also so the owner of the patent won't come running for the royalties that haven't/won't be paid! The grower who is doing the illegal vegetative propagation gives the plant a new, cute name.

Carol

    Bookmark   August 8, 2013 at 10:40PM
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brandon7 TN_zone(7)

"Maybe... but also so the owner of the patent won't come running for the royalties that haven't/won't be paid! The grower who is doing the illegal vegetative propagation gives the plant a new, cute name."

Trademark names have nothing to do with patents. It is not illegal to propagate (and sell) a plant with a trademarked name (or two different trademarked names). It's just illegal to use these names to sell the plant. If anything, I would think that applying a trademark name to a plant would only draw attention to the plant and make illegally propagating a patented plant even more risky,

    Bookmark   August 8, 2013 at 11:13PM
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jacqueinthegorge(USDA 8 / Sunset 5)

Hmmm. So if you developed a fancy new hybrid, would you choose to patent it or trademark it? What would make you choose to do one and not the other? Or would the best choice be to do both?

    Bookmark   August 9, 2013 at 1:59AM
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love_the_yard(z9A Jax FL)

Sorry, you are right. I used the two terms interchangeably when, as you point out, they are different. The common practice is to illegally propagate patented plants and sell them under another name, not necessarily trademarked, just different.

Carol

This post was edited by love_the_yard on Fri, Aug 9, 13 at 19:41

    Bookmark   August 9, 2013 at 7:40PM
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brandon7 TN_zone(7)

Some might have other opinions, but I'd think trademarking the name of a patented plant would be unnecessary unless the trademark was used to protect the name of a series of plants or maybe a business name associated with the plants. I don't see how doing both would be financially advantageous. If for whatever reason, a plant would not be easily patentable (for instance, the cultivar was discovered in the wild), the trademark might come in handy. There are also other reasons (financial, etc) to possibly consider trademarking, but not patenting, a plant.

    Bookmark   August 9, 2013 at 10:49PM
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jacqueinthegorge(USDA 8 / Sunset 5)

A little more research on this issue, and I'm pretty sure the following statements are factually correct, although I have no desire whatever to be an attorney or even work as a receptionist in an attorney's office. So if someone has any corrections to what follows, please don't keep silent.

A patent lasts 20 years, a trademark is forever.
Patents must be for "new" plants, and the patent protects the plant from being cloned (vegetative propagation, as in cuttings and rooting offsets). And yes, this includes cloning for your own yard with no intent to sell. If you want six of a patented variety, you must purchase six, even if the plants will live only in your backyard and never be seen by anyone except you and the cat. However, if you bred one patented plant to another, the seeds of that cross would not be protected by either patent (Dunno whether you could legally advertise your new plant as a seedling of AxB.)
A trademarked name can be given to any plant that is not patented. So you could trademark your version of a commonly grown variety, and the reason why you would do this is to market the living daylights out of it, and convince people that the plant you have given a shiny new name to is better than the plant you propagated from grandma's yard, even though it is the same variety (either a commonly grown hybrid or a strain that seeds true). You can clone a trademarked plant for your own purposes and even sell it, you just can't sell it under the trademarked name unless you have a license from the owner of the trademark. And, if you got it from grandma's yard, you could give it your own shiny new trademarked name. But you'd better be able to document where you got the plant!
So a plant can be both patented and trademarked, or just patented or just trademarked. (And of course, it may be neither, in which case have at it with no fear of the plant police.)
Scrutinize those labels carefully. Plant tags may have a patent number on them, but if the patent number doesn't start with PP - it's the tag that is patented and not the plant. Some folks are happy to have you confused on this point...But be careful anyway. The plant police do exist, and they are serious about protecting their investments in patents and trademarks. Unless you want to get into the whole licensed propagator scene, which involves (large) fees and plenty of paperwork, avoid cloning these plants.

    Bookmark   August 19, 2013 at 7:31PM
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love_the_yard(z9A Jax FL)

Jacque, your comments are interesting. What is the source of your information? Would you please provide a link?

    Bookmark   August 21, 2013 at 8:48AM
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jacqueinthegorge(USDA 8 / Sunset 5)

Hi love the yard, I didn't get it from any one source. I googled around using searches like "what is a plant patent" "what is a plant trademark" "plant patent vs. plant trademark" and the like.

Sure wish I could point you to one source, but if there is one, I sure didn't find it!

    Bookmark   August 23, 2013 at 11:24PM
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david52_gw

I'm curious - in this day and age of wide spread genetic analysis, do they now patent their plants using the specific DNA sequences, or just a general plant description?

    Bookmark   August 25, 2013 at 11:17AM
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jacqueinthegorge(USDA 8 / Sunset 5)

Good question, I didn't run across that. However, the sites I looked at were specific that it is the genetics that are protected, hence the prohibition against cloning. I didn't run across anything that said that the patent application has to include a full genetic chromatogram, or whatever they use nowadays to "take a picture" of the genome.

I wonder whether the patent holder just keeps a reference plant or three around in order to have something to compare if a dispute arises. Genetic testing is getting cheap enough that it would be readily available to anyone in order to prove whether a particular plant is a clone of another. Seems like it would be a lot cheaper to do it that way rather than go through the whole process of describing/imaging the whole genome.

    Bookmark   August 25, 2013 at 7:33PM
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