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Re: Hosta 'Cathy's Clown'

 I'm sorry, but apparently I'm not making myself clear.  I don't care
about the name.  I recognized in my first post that if you don't register
the name and someone else uses it, that's just your tough luck.  It's
happened to me many times and that's just the way it goes. I've been
around long enough to know that you don't freak out just because someone
sells a plant with a name you wanted to use. So let's get past your
theory that someone just happened to use the same name on their plant. 
Your statement that the whole area of ownership is very difficult is, I'm
sorry, more bull shit. I am not stupid and I don't go around making these
kind of accusations without knowing what I'm talking about. I guess you
could toss it off as just circumstantial evidence, but the plant looks
exactly like my plant named 'Cathy's Clown', happened by coincidence to
be labeled 'Cathy's Clown', and was obtained by him at the lab where I
was having my 'Cathy's Clown' tissue cultured.  Granted, it's not a
slam-dunk, but as far as circumstantial evidence goes, we've invaded
countries on less.  I do however, appreciate your sympathy. .

I recognize your sympathy for Oscar at Hillside also, and your fear that
he is being maligned.  That's why I put in my first post on the subject
that I had spoken to him, did not hold him responsible for any
wrongdoing, and mentioned that he was going to stop selling it now that
he knows that it has not been released.  Yes, Michael, I know it's my
plant. Oscar knows it's my plant. I know where it came from.  I know how
it happened. And I'm not naming names to reassure you that I know what
I'm talking about because I can't prove anything.  And the reason I used
Hillside's name on the internet is because Hillside sold the plant.  I
wanted the people who bought it to know what was going on.  Oscar has
enough integrity to know that what happened is not right and knows that
he shouldn't continue to sell the plant now that he knows it wasn't
released.  My expectation was that the people who bought the plant would
feel the same way.  What I don't understand is your making it your cause
to justify something that can't be justified. 

I am not against patenting plants.  We have had this discussion on the
forum many times.  But you are also wrong in stating that patenting is
the only way to protect a plant. My guess is that you have never patented
a plant, though I must admit that like you I am making assumptions
without any knowledge of the facts.  Not all plants deserve patenting,
and not all plants qualify for a patent. Far more plants are introduced
that are not patented than those that are.  It's not because we're all
stupid.  People, including myself, make money from unpatented plants
every day. Most of Solberg's plants are not patented. Most of Tony
Avent's plants are not patented.  None of my plants are patented. Very
few of us patent plants.  Do you think we are all stupid?  Only plants
that are going to sell in large volume justify the time and expense of
patenting.  You can make money on unpatented plants simply by controlling
their distribution long enough to make your reasonable profit with the
recognition that if the plant is good enough, it will in time be widely
propagated.  I have done this quite successfully with 'Satisfaction',
'Sergeant Pepper' and 'Surfer Girl' without difficulty.  The difference
is, I decided when and to whom the plants were sold for long enough to
make my profit because nobody stole the plants from the lab and released
the plant before I did. Patent or no, if somebody sells something that
they stole from you, your ability to make a profit on the transaction is
severely limited.   Your statement that you have no control over the
plant once it leaves the lab makes me wonder whether you understand what
FROM THE LAB BUT ME.  If you don't understand this point, then I'm
wasting my time talking to you.  I'm sorry, but it seems so simple to me.

As a theoretical mind game, if someone else had named a different plant
'Cathy's Clown' and I got all bent out of shape because I didn't have
enough sense to make sure of the facts, I would agree that I would be
stupid and you would be right. But as I have explained, that is not what
happened.  Trust me.

As to you're suggestion that a copyright might have kept the plant
protected, I would suggest that you read an excellent article by Tony
Avent on copyrighting plant names,
http://www.plantdelights.com/Tony/trademark.html to understand why no
hosta names have been copyrighted in many years.


michael shelton wrote:

  I want to go back and see if I can understand what you
  couldn't disagree with me more on.
  Was when i said that i was not unsympathetic.
  Was it that a patent is the only way that you can
  protect your intellectual property or that a copyright
  is a way to protect a name.
  Have you established that the plant that hillside sold
  is in fact a piece of your 'Cathy's Clown' or one of
  the plantlets from the lab that did the tissue
  culture. If not then they may have used the name you
  wanted (and I think you have a right to it) but not
  your plant and in that case they have not sold stolen
  property. This is a question?????
  You have published (the internet publishes our words
  for all to see) and involved hillside in the selling
  of stolen property (however they received it). Maybe I
  missed it but have you proved that the plant or plants
  (not the name, thats another matter) they sold are
  actually or ever were yours.
  I repeat "I am not unsympathetic with your problem".
  This whole area of ownership of plants is very
  difficult and the only way i can see anyone benefiting
  from their work is to patent a plant. Then the only
  thing you can realistically control is the patent
  payment attached to the purchase from a lab. Once it
  leaves the lab you have very little control and could
  not control the reproduction without a lot of legal
  The reason i did not and still do not like the
  original post is that you use someone's name
  (hillside) on the internet.
  Now the bullshit question. I confess I did not invent
  the knife. My brother did. Since he didn't patent it
  or copyright the name I stole it.
  --- Chick   <chick@bridgewoodgardens.com>   wrote:

     I'm sorry, but I couldn't disagree with you more. 
    I think you miss the
    point. Patenting has nothing to do with the issue.
    If the plant had been
    patented it would not have changed the sequence of
    events or my complaint
    in any manner. This is my plant and whoever got the
    plant from me did so
    without my permission.  That's called theft. I'm not
    accusing Hilltop of
    theft, or anyone who bought it from Hilltop, but
    somewhere in the past
    you have to get to the person who first got the
    plant without my
    permission and that is theft.  Someone knew they
    were taking a plant they
    did not have any right to. I don't care how may
    people bought it,
    eventually in the provinence of the plant you have
    to get back to someone
    who did not buy it because I owned it and I didn't
    sell it to them.  The
    fact that the plant exists does not mean that you
    can have it if you want
    it.  Every plant of 'Cathy's Clown' in the world
    belonged to me, and I
    did not sell it to anyone, so how did the person
    that first obtained the
    plant get it.  I specifically stated that I do not
    blame the people who
    bought the plant unknowingly, but if you buy stolen
    merchandise, that
    does not change the fact that what you bought was
    stolen.  I do not know
    who stole it, or from where, but I do know it was my
    plant and I did not
    authorize anyone to distribute it.  Patenting has
    nothing to do with the
    issue.  The only legal remedy in this case would be
    prosecution for
    theft, which is a bit far-fetched, even if I knew
    who took it and could
    prove it.  Now you are telling me I have no right to
    gripe unless I
    prosecute the thief. Excuse my language but I can't
    think of a better
    response than bull shit.
    My grip has plenty of weight, unless you think it's
    ok for me to come
    into your garden and take what I please, or come
    into your lab uninvited
    and steal your knife before you decide you're ready
    to sell it and get
    rich.  And if I come to steal your plants, I don't
    really care if they're
    michael shelton wrote:
      Chick there are some ways to protect your real and
      intellectual property and you already know what
      are but your unwilling to jump through the hoops.
      you want it to work the way you want it to work.
      take this as unsympathetic but all this discussion
      to nothing unless you follow the legal remedies to
      what you want.
      There is 1 way to keep control of the plant which
    is a
      patent. The other way is a trademark which may
      you keep control of the name.
      Your gripe has no weight except to throw dirt on
      someone who has done nothing but buy a plant
      'Cathy's Clown" and sell a plant called 'Cathy
      You have not established any ownership in the
    plant or
      the name that they sold nor do you have any legal
      rights to the plant they have (whatever it is).
      There are laws to protect your rights and you
      availed yourself of them yet you want to gripe.
      beware, seller beware, owner beware. Housewares is
      where the money is. I have a houseware I call a
      great little invention. You can cut bread, meat,
      finger. As soon as i get it out of the lab I'll be
      rich. If someone tries to sell you something
    called a
      knife, don't buy it its my mine.
      ---       NardaA@aol.com       wrote:
        In a message dated 7/20/2004 11:50:28 AM Eastern
        Standard Time,         chick@bridgewoodgardens.com      
        Until I publish the name or register the plant,
        there is nothing to stop 
        you.  The name is not what I'm trying to
        The plant is what's 
        Don't get me started on names and registration.
        Chick, register it quick!
        When we were at Wade Gardens a couple of weeks
        my Daughter saw 
        "Spellbound" in the garden so she put it on her
        list.  When she asked Van about it he 
        said that it did not come back from TC looking
        the mother plant.  But he 
        gave her one as a gift, we can call it
        as he is going to rename the 
        original plant.  The plant that she receive is
        beautiful, but this just 
        complicates things so much!  Not a chance of
        a piece of the original 
        Chick, NOW, I am going to have to go to one of
        music websites to listen 
        to Cathy's Clown-Herman's Hermits?  I want to
        it but the words won't 
        come to me, nah, Gary Lewis?  The Everly
        Never mind, I will just hum 
        the Herman Hermits ditty!


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