I'm not an attorney, but as I understand it, the rose should have two names - Rosa 'Cultivar Name' Big Fancy Trademark Name (TM). 'Cultivar Name' may be something very prosaic such as Jones53115, while the trademark name is the prettier sounding name that the rose is commonly sold under. If the patent is expired, you could sell it under the cultivar name but not under the trademarked name.

I don't know roses well enough to give you an example, but in the perennial world there is an orange coneflower that has a cultivar name of Echinacea 'Art's Pride' and a trademark name of Orange Meadowbrite. So if the patent were to expire you could sell it as Art's Pride. The hard part, of course, is that a well-marketed plant would really be known best by the trademark name and folks might snub your Art's Pride in favor of the better known Orange Meadowbrite, even though they would be the exact same plant.

Hope that helps!

V.

Hill/Narizny, THE PLANT LOCATOR - WESTERN REGION (Black-Eyed Susans/Timber) say

"This issue can get very complicated. The use of trade names is extremely common in roses; nurseries have been renaming roses that have valid cultivar names with more appealing names, to the extent that it can be very difficult to find a rose that has been renamed if you are looking for it by its original name. Knowing its real cultivar name is the key to finding the plant you want.

To further complicate the matter, there are a number of roses with the same trade names even though the plants are different. For example, there are four roses named Innocence, distinguishable only by their true cultivar (breeder) name or by knowing who bred them in what year, not readily accessible information. Unless the trade name is trademarked or registered, there is nothing to stop someone from calling a plant by the same trade name as another plant."

So if every hobbyist and wannabe nurseryman makes up a new name for their roses because the original name is trademarked, then you end up with a single rose variety having literally hundreds or thousands of different names.

I'm sorry, but that is one of the most asinine laws I have ever heard of.

"What's in a name? That which we call a rose
By any other word would smell as sweet."

--From Romeo and Juliet (II, ii, 1-2)

I've often noticed growers labelling their plants as the cultivar name and making a note in the catalog description about the trademark name of the plant.

In some ways, it's kind of the same thing using both names to sell the plant. All so confusing!

Here's an article by Tony Avent that explains this mess..

Here is a link that might be useful: Trademarks

I agree with Tony's article and am just stunned at what I see folks do to rush out to name a plant even without proper testing. But again some of the societies don't have a clue either. What we did here is trademark our name when registering for our business license, that way when I send out seeds to test they get the kht and either a letter if the batch of seeds are small or a given series of numbers that go along with a series of numbers for the parents of the plants we currently grow. These numbers are a meaning for our business only. That way the testers have no clue as to what they are testing and are not told until they give us an honest opinion of what they grow. This is the first year and we do not name as the society states we can in the first year. We have testers across the nation and the second year they get them to test for a 2 year period.
We relie heavy on our testers but again if the seeds/plants are special it's best to do the research first at the place they are founded, but again you need your testers all over to make sure the new plant will grow every where. Contacting a attorney is needed these days in the name game but again folks just will put their mark on anything to make a buck!