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Re: Hosta 'Cathy's Clown'

  • Subject: Re: Hosta 'Cathy's Clown'
  • From: "Bill Meyer" <njhosta@hotmail.com>
  • Date: Tue, 20 Jul 2004 22:24:32 -0400

Hi Chick,
      I'm coming into this a little late, but my sympathies are with you on
this. It was certainly your property ethically, but the legal question seems
to be a little foggy. There have been numerous incidents of TC labs (won't
say who, but not all of them) that propagated the contracted-for amount,
then continued propagating beyond that. Some have seemed to feel that is
legally their right if it was not spelled out specifically in the contract.
This seems ridiculously unethical to me, but it may be fair game from a
legal standpoint. I don't know. My question is this - Did you each sign a
contract that all material of 'Cathy's Clown' was your property and that it
was all to be returned to you?
       If you did, then it is clear they are in violation of their contract
with you and open to legal action. I don't think anyone would fault you for
suing them for lost earnings. I certainly wouldn't. It is clear that they
have impacted your earnings from the plant. If you did not have all this
spelled out correctly in a contract, you may have no legal recourse. The
laws probably vary on this, and I'm no expert on them. This has been the
case in many previous situations. Hybridizers have contracted for
propagation with labs by simple verbal contract and never put together a
written and signed document. I guess we want to believe that the people we
know are honest and trustworthy, but our motto should be the old saying
"Trust everyone but cut the cards".
       That all said, there still could have been an accident such as
workers at the lab accidentally shipping Hilltop the wrong plant as part of
their order. This might be the case if no one else was shipped the plant and
it is not listed on the labs' wholesale list. If they are openly offering it
to retailers, I guess there isn't much question of their guilt in this. I
would appreciate knowing who the lab is so I can avoid dealing with them in
the future. Please let me know privately if you don't want to say here.
        Hilltop was not a vendor at First Look this year or any other. They
were at the Convention in Iowa, but I didn't see your plant there. I know
the Cross family, and I'm sure they wouldn't knowingly be selling stolen
plants. Cathy's Clown was never in any of our auctions, and I don't think it
was in an AHS auction either. I think I know which plant it is.

> 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.
> Chick
> 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
>   expense.
>   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
>     patented.
>     Chick
>     michael shelton wrote:
>       Chick there are some ways to protect your real and
>       intellectual property and you already know what
>     they
>       are but your unwilling to jump through the hoops.
>     Yet,
>       you want it to work the way you want it to work.
>     Don't
>       take this as unsympathetic but all this discussion
>     leads
>       to nothing unless you follow the legal remedies to
>     get
>       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
>     help
>       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
>     called
>       'Cathy's Clown" and sell a plant called 'Cathy
>     Clown'.
>       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
>     haven't
>       availed yourself of them yet you want to gripe.
>     Buyer
>       beware, seller beware, owner beware. Housewares is
>       where the money is. I have a houseware I call a
>     knife,
>       great little invention. You can cut bread, meat,
>     your
>       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
>       writes:
>         Until I publish the name or register the plant,
>         there is nothing to stop
>         you.  The name is not what I'm trying to
>     protect.
>         The plant is what's
>         important.
>         Don't get me started on names and registration.
>         Chick, register it quick!
>         When we were at Wade Gardens a couple of weeks
>     ago
>         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
>     like
>         the mother plant.  But he
>         gave her one as a gift, we can call it
>     "Spellbound"
>         as he is going to rename the
>         original plant.  The plant that she receive is
>     very
>         beautiful, but this just
>         complicates things so much!  Not a chance of
>     getting
>         a piece of the original
>         plant.
>         Chick, NOW, I am going to have to go to one of
>     those
>         music websites to listen
>         to Cathy's Clown-Herman's Hermits?  I want to
>     sing
>         it but the words won't
>         come to me, nah, Gary Lewis?  The Everly
>     Brothers?
>         Never mind, I will just hum
>         the Herman Hermits ditty!
>         Narda
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