Return to the Heirloom Plants & Gardens Forum | Post a Follow-Up

 o
Exclusivity for heirlooms

Posted by reginald_25 5 (My Page) on
Sun, Dec 24, 06 at 13:14

Hi,

I realize this topic is not directly about growing tomatoes. But I would like to know if there are any legal "ownership" rights to heirloom tomato varieties (and their "NAMES")? Like some kind of patent or intellectual property rights or licensing ?

As in I could "develop" a "new" OP variety and name it, say, "Willie Gates Green" (with the permission of the person or entity referenced in the name) and execute some legal instrument to effectively make that variety (e.g., its NAME) my property for a certain period of time ? And thus not allow others to market it under that name unless they license its name from me. Of course one could just rename and sell it under the newly named variety and (if necessary) claim, for instance, that it was seed sent from an unknown source or was some sort of weird cross or mutation.

Case in point here: I presume a commercial vendor could grow stock for "Rostova" OP tom seeds and market them as "Rostova" (without any licensing agreement) but not as " Sunset's Red Horizon", even if they are the same variety.

In a related issue curious to me, I see several "dehybridized" hybrids (e.g., Big Beef) marketed as OP varieties whislt retaining the same name as the hybrid. Maybe rights to a (tomato variety) name expire after a certain length of time.

Reg


Follow-Up Postings:

 o
RE: Exclusivity for heirlooms

"Heirloom" and "patented" are mutually exclusive. Heirlooms are OP (open pollinated) varieties that can be (and are) shared freely in the public domain... furthermore, they are generally varieties that have been around for 50 years or more. Newer developments can be OP, but they will not be heirlooms unless & until they stand the test of time.

New varieties created by conventional breeding techniques can be granted PVP (patent) protection, but they must be demonstrably different than existing varieties. In other words, there are no grounds for renaming something that already exists & patenting it as a new variety. This is not to state that this does not occur... which fuels the debate about the theft & patenting of lifeforms which are indigenous to other parts of the world.

Note that a PVP variety can legitimately be used to breed other varieties, and gardeners & farmers can save their own seed... only the sale of seed or plants is prohibited.

Most hybrids are protected not by patents, but by keeping secret the parental breeding stock. A de-hybridized version of a popular hybrid would thus be legal... but the use of the original name may be covered by trademark (copyright) law. Just how similar the new name could be to the original would be a matter for attorneys.

As for the renaming of OP varieties for resale, it happens quite often... a matter of no small frustration to seed banks, large-scale collectors, and even seed savers like myself. It leads to deceptively large numbers of existing varieties, when in fact 50% or more could be duplicates. Seed companies use the same "new" & "improved" marketing tactics as other businesses, with varying degrees of accuracy; sometimes all that was changed was the name.

In case you missed it, my recommendation on changing the name of a variety (so as to make it appear unique) is not to do so. While it may not be criminal, it is certainly unethical. The widespread use of this tactic interferes with worldwide efforts to preserve the genetic diversity of our food crops.


 o
RE: Exclusivity for heirlooms

"Heirloom" and "patented" are mutually exclusive...

zeedman, I understand that. However your reply did not address my questions. Most of which were implicitly addressing the "NAME" of the OP cultivar.

For example, could I legally (commercially) sell "Rostova" tomato seeds under the name "Horizon's Red Sunset" without being licensed by the commercial developer of the "Horizon's Red Sunset" name, even knowing the the two names reference the same variety of tomato ? I doubt it.

Reg


 o
RE: Exclusivity for heirlooms

>"Heirloom" and "patented" are mutually exclusive<

One would hope so. But since the courts have approved the patenting of genes, and existing germplasm supposedly in the public domain, and other naturally occuring lifeforms, the lines are getting blurry.

>and execute some legal instrument to effectively make that variety (e.g., its NAME) my property for a certain period of time ? <

There is a concept in law called "automatic copyright," which says you own any intellectural or artistic property the moment it is concieved.

However, the most recent rulings are that the property must be registered in order to enjoy protection under the copyright and trademark laws.

In other words, merely coming up with a name for a new tomato isn't enough. You have to register that name.

With OPs, what would you accomplish? As soon as the first seed trader grew that variety it would, for all practical purposes, enter the public domain.


 o
RE: Exclusivity for heirlooms

In other words, merely coming up with a name for a new tomato isn't enough. You have to register that name.

With OPs, what would you accomplish? As soon as the first seed trader grew that variety it would, for all practical purposes, enter the public domain...

gardenlad, that was my whole point. After "creating" a "new" OP variety and legally registering it under a unique name, I then suspect that no commercial vendor could market it under that NAME (even tho they have genetically identical seeds) unless the owner of said name licensed them to do so.

Otherwise the creation of a newly-named OP variety confers only ephemeral benefit to the supplier and may, in fact, damage vendor's reputation if vendor did this repeatedly.

Reg


 o
RE: Exclusivity for heirlooms

Was that your point, Reg? I thought you were posing real questions. There certainly were enough question marks peppering your post.

As both a freelance writer, and head of the Appalachian Heirloom Seed Conservancy, these issues are very real to me. They are not issues I use to liven up an otherwise dull afternoon.

I think, also, you need to learn a little something about how seeds are handled in commercial trade, nowadays. Unlike the old days, very few seed houses actually grow their own seed anymore. The smaller, specialty houses still do, or contract with other growers to do so. But, by and large, the bigger, mainstream houses buy seed in bulk from what are only a small number of growers. And even the specialty houses buy much of their seed from those same growers.

So, in practical terms, if a new variety did become popular, it would most likely be marketed under the name given it by the breeder. The seed grower might or might not pay royalties (depends on 1. whether it was registered, and 2. how much the breeder wanted in royalties, or, 3. in the event of an illegal usage, whether the owner wanted to pay the costs of protection--which, btw, take 50 large just as a door opener). Whether a royalty was or was not being paid, however, is between the seed grower and the owner. The seed houses rightfully assume that the grower has the right to sell them the seed they are buying.



 o
RE: Exclusivity for heirlooms

I think, also, you need to learn a little something about how seeds are handled in commercial trade, nowadays. Unlike the old days, very few seed houses actually grow their own seed anymore. The smaller, specialty houses still do, or contract with other growers to do so...

gargenlad, I know all of that and it has little to do with the salient point of my post.

I will put it again: Can a breeder, grower, etc. make up and register a unique NAME for a "new OP" variety of tomato plant and legally prevent other commercial vendors from using that NAME for a period of time as prescribed by law ?

A very simple question. If you do not know, that is OK with me. I was just wondering.

However my gut feeling here is that if a commercial marketer at any level in the food chain does legally apply a unique name to a cultivar, that same name cannot be used by other commercial entities to promote sale of same cultivar, unless licensed by legal owner of name. This would be applicable to both hybridized and OP cultivars. For example, I doubt if Burpee Seeds Co would take kindly if it was discovered that some company had put onto market some of their newly-created hybrids under the same NAME. That don't happen. And it is because the NAME is an intimate part of that property right (even tho the genetics of the hybrid cannot normally be duplicated unless the "keys" to it are stolen).

With OP varities it is not the same... except for the NAME.

Reg


 o
RE: Exclusivity for heirlooms

Reginald, perhaps if we could move the discussion out of the theoretical realm, and dispense with the third person, it would be easier to answer the question to your liking. Clearly stated, what is your intent? You are dancing around an issue... try asking a straight-forward question.

I agree with Gardenlad, your extensive use of quotation marks (as around "new" and "develop") just puts a smokescreen around your inquiry. You seem to imply that you are not interested in actually breeding new varieties, and that your intent is to claim ownership over an existing variety merely by renaming it.

Your statement "Of course one could just rename and sell it under the newly named variety and (if necessary) claim, for instance, that it was seed sent from an unknown source or was some sort of weird cross or mutation." implies willful deceit.

If I am wrong in these assumptions, it is only because you have haven't properly phrased your question(s).

I believe I did answer your question (at least partially) when I referred briefly to the use of trademarks & copyright law... as did Gardenlad when he expanded on the issue. Renaming alone serves no purpose, since the OP variety itself continues to exist under its original name - unprotected - in the public domain. Gardenlad can correct me if I am wrong here... if any grower chooses not to pay for the use of the trademark, they could just create yet another name, and say "developed from...". What's good for the goose is good for the gander.

And of course, there would be no demand for the "new" variety to begin with, unless it had been widely popularized by the "developer". That would probably require, at a minimum: (1) favorable field trials in diverse locations against established cultivars, and (2) complimentary articles or reviews in national publications. To cite your own example, the chances of a major seed company failing to notice in their trials the similarity of "Horizon's Red Sunset" to "Rostova" would be remote, IMO.

Gardenlad belongs to AHSC; I belong to Seed Savers Exchange. For both of us, the preservation of existing food cultivars - under their original names, with their origins & history intact - is vitally important. It is bad enough that names often change as they cross borders, or as they are passed down through the years; to alter them intentionally, with no legitimate claim to improvement, is unethical. GL can speak for himself; but as far as I am concerned, attempts to claim ownership (by means of patent or trademark), or to otherwise restrict the free exchange of existing OP varieties, will probably find few receptive ears in this forum.


 o
RE: Exclusivity for heirlooms

Reginald, perhaps if we could move the discussion out of the theoretical realm, and dispense with the third person, it would be easier to answer the question to your liking. Clearly stated, what is your intent? You are dancing around an issue... try asking a straight-forward question.

Well I had asked it before, viz:

Can a breeder, grower, etc. make up and register a unique NAME for a "new OP" variety of tomato plant and legally prevent other commercial vendors from using that NAME for a period of time as prescribed by law ?

Rather simple question in my view.

But I get the sense that you do not know the answer to it because you have not addressed it and have not the humility to say that you do not know.

Reg


 o
RE: Exclusivity for heirlooms

Can a breeder, grower, etc. make up and register a unique NAME for a "new OP"..... and legally prevent other commercial vendors from using that NAME...?

Well, let's see:

>New varieties created by conventional breeding techniques can be granted PVP (patent) protection, but they must be demonstrably different than existing varieties.<

>There is a concept in law called "automatic copyright," which says you own any intellectural or artistic property the moment it is concieved.<

>However, the most recent rulings are that the property must be registered in order to enjoy protection under the copyright and trademark laws.<

If those don't add up to "yes" it's merely because somebody doesn't know how to read. Or is being contentious for its own sake. So let's put it in understandable monosylables:

Yes you can. But it costs big time to do so.

Clear enough now?

Zeedman: Just to clear up any confusion, I am also an SSE member---have been so for quite a few years. And it should go without saying that I'm 110% in agreement with your final sentance.


 o
RE: Exclusivity for heirlooms

GL, let the record stand corrected. ;-) I remember reading that you are an unlisted SSE member. I should have more properly stated "Gardenlad is active in the AHSC..." I have read your posts, and know that we have similar thoughts on this issue; but I try not to speak for others... especially those who do quite well on their own. (Tip of the hat)

I wish you would reconsider listing... but that is a topic best left to private communication.

And I agree with your assessment, I believe it to be highly likely that the sole purpose of this post was to be provocative - hence its posting here, vice somewhere more appropriate such as the Hybridizing Forum. I will waste no further time on it.


 o
RE: Exclusivity for heirlooms

Quotes from the
Federal Seed Act.

A variety can only have one name.

The same name cannot be given to more than one variety of the same kind or a closely related kind. Kinds of the same species such as pumpkin and squash, field corn and sweet corn, and garden bean and field bean cannot have varieties with the same name. Closely related kinds that are known to intercross such as wheat and triticale cannot have varieties with the same name.

A variety name cannot be misleading such as a name that is similar to an existing name but differs only in spelling or punctuation.

Varieties with names derived from the name of an existing variety must be closely related to the existing variety.

Variety names may contain trademarks, but the trademark status is lost in the sense that anyone marketing seed of that variety must use the entire variety name including the trademark.

A trademark symbol or registered trademark symbol cannot be displayed in the variety name.

A trademark by itself cannot be a variety name and a variety name cannot be trademarked.
"


 o
RE: Exclusivity for heirlooms

Reginald, perhaps if we could move the discussion out of the theoretical realm, and dispense with the third person, it would be easier to answer the question to your liking. Clearly stated, what is your intent? You are dancing around an issue... try asking a straight-forward question...

OK all, can any of you name ONE OP tomato cultivar that has a verifiable PVP status ? Is that question sufficiently dim-witted for you ?

Reg


 o
RE: Exclusivity for heirlooms

here is list six pulled from usda pvp database: 888 , Diablo 71-75 , DNAP-17 , Ohio 8243 , Beall's Gourmet.
link to data base provided below.

You all really must learn to use google.

Here is a link that might be useful: usda pvp data base


 o
RE: Exclusivity for heirlooms

Mrow! Fft! ffffftt!


 o
RE: Exclusivity for heirlooms

reginald_25: I know of an heirloom (OP) bean, introduced and called a "hybrid" this year by a mainstream seed company (and, no doubt, patented)--which has been grown by my family for 100 years. I'm livid.


 o
RE: Exclusivity for heirlooms

Marylandmojo, don't assume it's patented.

Major seed houses often identify beans as being hybrids in order to fool people into not saving seeds.

The fact is, every bean is OP. New varieties are developed via selection, mutation, and accidental crossings, not through intentional hybridization.

Another problem is that the people in the seed houses often don't know whether or not a variety is a hybrid. They're buying that seed from a producer, who may identify it erroneously, and the seed house just repeats the info.

I'm curious what the variety is that has you so, with justification, so bent out of shape?


 o
RE: Exclusivity for heirlooms

I know of an heirloom (OP) bean, introduced and called a "hybrid" this year by a mainstream seed company (and, no doubt, patented)--which has been grown by my family for 100 years...

marylandmojo, I rather doubt that this "hybrid" bean has a "PVP" status. The real deal here (if I get this correctly) is that the marketer stole the bean's NAME and then misrepresented it. The NAME of a PVP variety must be unique according to the regulations that I have read.

Reg


 o
RE: Exclusivity for heirlooms

Although I probably have no right to be livid, I will be, until they plant me; and I'll never spend 5 cents with the company that has claimed it as their own, saying they "developed" it. I don't intend to identify the bean at this point in time. When and if I ever get over being livid, I'll try and figure how to proceed--and probably identify it then.

It's history, as I know it, is that it came down from my paternal great-grandfather from Virginia, who fought and died in the Civil War. (Ironic that my great grandfather on my mother's side (from New york) died at Gettysburg, fighting for the OTHER side). My paternal grandfather, who was born in 1856 and died in 1953, grew it and gave it sparingly to family members, and a few very special friends. It was later grown by my father and uncles, until they died; for the past 20 years, I have grown it. I had intended to (eventually) get it into commerce through SSE, or something similar.

It IS unique--by its taste and, mostly, its shape, which is like no other (easily identified). Nevertheless, it was sort of a family thing. It was special, and the people who received it from my family were special enough to understand that you don't try to profit from a special vegetable given to you by a special friend; for example, by renaming it and saying you developed it, and offering it for sale so that YOU may profit from it.

A very rare bean, but I saw it in the possession of another gardener about 20 years ago, and knew that there was at least one other source. I just never thought I'd see it in a seed catalog with a goofy name, and the company saying they "developed" it.

If they had said they had stumbled across it--which is, no doubt, what happened--I probably wouldn't be upset. But to say they developed it and call it a hybrid is what ticks me off. As I said, there was never another like it sold commercially (and I've been reading seed catalogues annually for the past 50 years); and I know it by seeing it--it can't be mistaken for another.

So, that's why I'm livid--whether I have any right to be, or not. Maybe I'm upset because I should have gotten it into commerce--at least I would have told the truth about its origin, as I know it.

Maybe I'll start a seed company and sell it by its true name. Anyone got any other suggestions?


 o
RE: Exclusivity for heirlooms

Marylandmojo, if, as you say, it came down as a family heirloom from Virginia, than that is AHSC's business. Our mission is to preserve Appalachia's edible heritage.

I understand why you might not want to identify the bean or the seed company publicly. But, if you like, contact AHSC at KentuckySeeds@hotmail.com and we can discuss possible ways of proceeding.


 o
RE: Exclusivity for heirlooms

Maybe you need to look at the history of "Goose Creek" tomato.

Fusion


 o Post a Follow-Up

Please Note: Only registered members are able to post messages to this forum.

    If you are a member, please log in.

    If you aren't yet a member, join now!


Return to the Heirloom Plants & Gardens Forum

Information about Posting

  • You must be logged in to post a message. Once you are logged in, a posting window will appear at the bottom of the messages. If you are not a member, please register for an account.
  • Posting is a two-step process. Once you have composed your message, you will be taken to the preview page. You will then have a chance to review your post, make changes and upload photos.
  • After posting your message, you may need to refresh the forum page in order to see it.
  • Before posting copyrighted material, please read about Copyright and Fair Use.
  • We have a strict no-advertising policy!
  • If you would like to practice posting or uploading photos, please visit our Test forum.
  • If you need assistance, please Contact Us and we will be happy to help.


Learn more about in-text links on this page here