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Re: Hosta 'Cathy's Clown'

 Welcome Bill.  I was wondering where you were.  Butch did his best to
muck up the issue with patents and copyrights and other issues that had
nothing to do with what happened, but he just really doesn't have your
knack for needless complication.  Frankly it never occured to me to
contemplate the foggy legal questions.

Actually what happened was that the plants fell off the back of a
tractor-trailer and were discovered on the side of the highway by a
homeless person who just happened to be walking down the interstate.  Now
he found the plants, but of course we can't really blame him because he
doesn't know what a hosta is and simply thought they were tomato plants
with tire tracks on the leaves.  He just happened to stop at a certain
nursery, which shall remain nameless so people won't think they are
guilty of something they were never accused of, and was given some
cucumber sandwiches for lunch.  In gratitude, he gave the nameless and
blameless nurseryman the tomato plants he found on the interstate,
tomatoes going well with cucumbers, you know. The nurseryman recognized
the plants as hostas, because of course they had no tomatoes hanging on
them and it's already mid July. He called to tell me of his good fortune
and unfortunately, the story somehow got garbled in the retelling.  I
somehow got the impression that someone had stolen a hosta of mine named
'Cathy's Clown'.  I can't explain how cucumber became 'Cathy's Clown' but
somehow it did. 

Anyway, this has all been a big mistake and I'm sorry I brought it up. 
Never mind.

I'm not sure how I can make this much simpler.  The plant was stolen. 
The lab knows the plant belonged to me, Oscar knows the plant belongs to
me, and I'm pretty sure the plant belongs to me.  You guys can think up
all kind of what-ifs and complicated scenarios you like, but it doesn't
change the fact that the plant belonged to me and someone else, who knew
the plant belonged to me, sold it without my permission.  There are no
complicating factors no matter how hard you try to find one.  It has
nothing to do with contracts, it has nothing to do with me not
understanding how things work (though I certainly appreciate ya'll trying
to clue me in, me being a simple old country boy now), and it was not an
accident.   Believe it or not  Bill, it happened exactly as I said it

I anxiously await your next theory. 


Bill Meyer wrote:

  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.
    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          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
            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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